Summary: The Ombudsman found fault by the Council on Mr M’s complaint that it failed to take account of the information he previously sent about starting construction works on site when he applied for pre-application advice. The officer missed this evidence. The Council missed the opportunity to acknowledge this failure sooner than it did. This is fault. It delayed responding to a letter from him for 10 weeks. None of the faults caused Mr M a significant injustice.

The complaint

1. Mr M complains the Council, when asked to provide pre-application advice on a development proposal, failed to:
1. take account of information he sent earlier about starting construction works on the site under planning consent previously granted;
2. accept this failure when drawn to its attention; and
3. respond to his queries made before the officer gave advice.
2. As a result, the failures put him to considerable expense seeking legal confirmation that works had started and caused him frustration and distress.

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The Ombudsman’s role and powers

3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

5. I considered all the information provided by Mr M, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr M and the Council. I considered the Council’s response.

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What I found

6. Mr M owns a plot of land which contains a large building (the building) and 2 semi-detached dwellings. In 2015, he obtained planning consent for the conversion of the building to form 3 houses and 2 residential flats (application 1). One of the conditions of the consent was he had to start the development within 3 years.
7. He started work on the development under application 1 in January 2018, within the condition deadline. Shortly after, he emailed the Council photographs of the works.
8. Mr M then decided he wanted to demolish all existing buildings on site and replace them with 5 new dwellings instead. He made a pre-application planning enquiry (the enquiry) in August for advice about the proposal. His agent’s letter said the proposal would mean a net reduction of units on site compared to what the Council granted consent for and no increase in vehicular traffic to and from the site.
9. A planning officer (Officer X) visited the site and on 21 September, sent Mr M the enquiry advice. This referred to the planning history of the site, Council policies, and concluded the Council would most likely refuse the proposal if he applied. This was because it failed to comply with planning policy. The advice said as works on application 1 had not started, its consent had expired.
10. Mr M argued Officer X failed to properly assess his enquiry and missed key information available on the Council’s files. He argued it was clear the Council had evidence of works starting before the 3-year deadline expired. As the officer failed to properly check the file, which had the evidence he sent, he spent more money challenging the advice. Officer X, when alerted to the error, refused to reconsider it.
11. Officer X suggested he apply for a Certificate of Lawfulness of Proposed Use or Development (CLP). This would then establish whether his works were a, ‘material start on site’. A CLP is used, for example, to establish works had already started under planning consent. The CLP would help Mr M should he sell the land as it would be evidence that the works undertaken, close to the 3-year deadline, were lawful. It would also protect Mr M from enforcement action if there was a query about whether works started in time.
12. In correspondence with the officer in December, Mr M said, ‘Firstly, we are of course not asking you to opine about whether or not the previous permission has been implemented, which is clearly, as you rightly point out, an issue for the legal department and yourself, and indeed we shall submit a CLP if necessary’. He went on to say as the advice failed to take account of the work started, he wanted the officer to re-consider it. He argued he would have to spend time and money getting a CLP when he merely wanted the advice to reflect works had started, which he believed was, ‘highly material’.
13. In January 2019, Officer X replied to Mr M saying regardless of whether the previous consent was implemented, the enquiry advice would remain the same. This was because his proposal would not comply with planning policy.
14. In response to my enquiries, the Council confirmed the advice would remain the same had Officer X seen Mr M’s previous email and photographs about starting works. This was because the enquiry proposal was materially different from application 1. What he proposed was like an application it received and refused following application 1. While accepting Officer X missed the email evidence, the Council explained she raised it with a line manager and a team leader at the time, but, it did not change the advice.
15. Mr M applied for the CLP but complained when this was allocated to Officer X to decide. He argued it inappropriate as the officer was not independent. Officer X went on to approve the CLP.
16. Mr M says these failures cost him £5,633.26 in total (£580 for the pre-application advice, £1,175 for legal advice, £368.40 for an ecology survey, and £3,509.86 in agent fees).

Analysis

Complaint a): failing to take account of works starting

17. Mr M believes Officer X should have known about works starting on application 1 which was relevant to his enquiry. The inference is had Officer X known about these works, the advice would have differed and gone in his favour. In addition, the officer acknowledging the start of works would have meant he had no need to apply for the CLP.
18. I have read a copy of the advice. The summary states what Mr M proposed was unacceptable. This was because it conflicted with the Council’s development plan policies. When setting out the history of the site, the advice noted 2 previous consents from the Council for the conversion of the building and retention of the 2 houses. It also noted Mr M applied after application 1 for outline consent for the demolition of all the buildings on site and the erection of 3 detached dwellings, which the Council refused.
19. I make the following findings on this complaint:
1. Officer X’s advice was not legally binding.
2. The advice referred to the consent the Council gave application 1. This allowed the conversion and re-use of an existing rural building and so complied with planning policy (Core Policy 48). This policy states the conversion and re-use of rural buildings will be supported for employment, tourism, cultural, and community uses subject to certain criteria. As the new proposal was for the demolition of the building, the advice said it did not fall within Core Policy 48. This is an important consideration because application 1 and the new proposal were fundamentally different.
3. The advice states as works for application 1 never started, the consent expired. It goes on to say this means the officer could give consent on application 1 limited weight. The Council accepted Officer X had not taken account of the information Mr M sent earlier that year about starting some works on site. This is fault.
4. The advice noted the Council’s refusal of an application received after it granted consent on application 1. Mr M sought consent to demolish the building, erect 3 new dwellings, but to keep the 2 existing houses. The Council refused this because of its location in open countryside and its failure to meet the requirement of other Council policies. It was contrary to Core Policy 60 (i) and (ii) which states the Council will use its planning powers to help reduce the need to travel by private car. It will achieve this by planning developments in accessible locations and promoting sustainable transport alternatives to the private car. The officer decided the decision on this application was relevant to Mr M’s new proposal and gave it significant weight. The advice also noted what the National Planning Policy Framework said about avoiding new isolated homes in the countryside without special circumstances.
5. Despite giving the consent under application 1 limited weight, Officer X noted the material differences between it and what was proposed. The officer also noted the failure of the new proposal to comply with policy.
6. Officer X failed to properly take account of the evidence Mr M sent at the start of the year about commencing works. This is fault. In reaching this decision, I took account of what the Council said about record keeping, its possible shortcomings, high workloads, the high volume of correspondence, and correspondence that may be sent to officers who have since left. While I accept these are problems every local planning authority faces, they are not insurmountable.
7. I am not satisfied this failure caused Mr M a significant injustice. This is because whether the works had started or not had limited significance to the advice. There were other significant considerations Officer X set out which meant it unlikely the Council would grant consent to his proposal. If Mr M disagreed with the advice because of the officer’s failure, he could have applied for full planning consent.
8. If Mr M’s aim of having the advice was to reflect the fact works had started because he wanted confirmation from the Council they were lawful and immune from enforcement action, he needed to apply for a CLP anyway. He appears to accept this course of action in the email he sent the Council in December 2018.
9. As the advice has no legal status, even if it had referred to works starting within the 3-year deadline, it would not be satisfactory evidence for any future potential purchaser of a property on the site, for example.

Complaint b): refusal to accept the failing

20. Mr M complained about Officer X in early February 2019. Four days later, a senior officer emailed Mr M saying he would respond but was busy on other work. Later that day, the officer replied to another email from Mr M. This confirmed the Council would not replace Officer X who was dealing with the CLP.
21. On 20 February, the Council sent him the stage 1 response under its complaint’s procedure. In it, the Council noted Mr M wanted an opinion from Officer X about the implementation of works. The Council explained Officer X had already confirmed the commencement of works would have no bearing on the enquiry advice. Due to Mr M’s intention to apply for a CLP, the letter explained the Council would not pre-determine that application by commenting on it now. The Council also explained officer opinion did not have the same weight as a CLP. The CLP process is a formal statute bound process. The Council explained he overstated the significance of the commencement of works to the advice.
22. The following day, Mr M complained about the stage 1 response. In April, the Council sent him its stage 2 response.
23. I make the following finding on this complaint:
1. The Council could have accepted sooner than it did that Officer X missed his information about works commencing without prejudicing its position about the CLP application. This is fault.
2. This refusal to acknowledge the failing earlier caused Mr M some frustration. I am not satisfied this was a significant injustice to him because it was clear from the advice his information about the works was not considered. In addition, as already noted, it would have no bearing on the advice anyway, and Mr M needed to apply for a CLP if he wanted protection from enforcement action and to give an assurance to any future purchaser.

Complaint c): failing to respond

24. On Mr M’s complaint form, he said he was unhappy with the inadequate response to his correspondence about his proposal before he went on to make the application, which I assume was the CLP.
25. For the sake of completeness, I have looked at how the Council responded to his correspondence both before the enquiry advice, and after giving it, up to the point he made his application for the CLP.
26. I make the following finding on any complaint Mr M may have about contact with the Council before he got his enquiry advice:
1. I found no fault on this complaint. I say this because there is no evidence showing the officer failed to respond to Mr M or his agent. In reaching this conclusion, I note the following correspondence between the officer, Mr M, and his agent:

• 23 August: an email to the agent which refers to a telephone conversation the week before. The officer told the agent about visiting the site and how a meeting was not necessary. Another email sent the same day confirmed the agent should call to discuss any specific questions about the advice.
• 14 September: the officer emailed the agent about waiting for responses from the ecologist, the drainage engineer, and arboricultural officer. This was in response to the agent’s request the day before for an update.

27. I make the following finding on the complaint Mr M has about contact with the Council after he got his enquiry advice:
1. I found fault on this complaint as there was delay responding to some correspondence. In reaching this decision, I took account of the following evidence of contact between Mr M’s agent and the Council:

• 28 November: Mr M’s agent contacted the officer. Although I have not seen the documents he attached, the title of the attachments appears to suggest he was attempting to get the Council’s agreement to the discharge of conditions on application 1 or was attempting to get the officer to accept works had started contrary to what was said in the advice. The officer replied the following day saying they would be considered.
• 10 December: the agent chased Officer X, with the email subject referring to the pre-application enquiry. The officer replied the following day apologising for the delay caused by a high workload. The officer also asked what work had been done to implement application 1.
• 13 December: the officer replied to the agent’s response saying the access works referred to as evidence were laid earlier and so it appeared no significant works were done under this consent. The same day the agent sent a photograph of the correct access to the site along with invoices for work done.
• 19 December: the officer emailed the agent saying due to workloads, it would be better if he made an application for a CLP to determine whether the work amounted to a material start on site. The agent replied saying fairness required the officer to provide a view on this as Mr M paid for the pre-application advice. The agent thought the issue simple and the officer should give a judgment without the need for a more detailed assessment. The agent thought the advice failed to take account of all material considerations.
• 21 December: the officer maintained Mr M now needed to obtain a CLP to have the certainty he seemed to require. Mr M replied wanting the officer to re-consider the advice taking into account the start of the works as he thought it ‘highly material’.
• 2 January 2019: Mr M chased the officer again wanting a revised enquiry advice.
• 1 March: the officer replied, apologising for the delay and confirming the advice would remain the same even with the start of the works.
2. I am not satisfied the 10-week delay in responding to Mr M’s letter of 2 January caused him a significant injustice. The officer had previously explained the position about the enquiry advice and the need to apply for a CLP.

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Final decision

28. The Ombudsman found fault causing no injustice on Mr M’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman