Summary: The Ombudsman will not investigate this complaint that the Council has been discriminatory and inconsistent when giving pre‑application planning advice. This is because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr B, says the Council has been inconsistent and discriminatory in the pre-application advice it gave him about his proposed development, when compared to a similar planning application that was subsequently approved.
2. Mr B says he has suffered financial loss from expenditure in the planning process and being unable to expand his business, and he has suffered inconvenience and stress in raising the matter with the Council.

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The Ombudsman’s role and powers

3. 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. We refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is insufficient evidence fault. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I have considered:
• Mr B’s complaint to the Ombudsman;
• The Council’s Stage 1 and 2 complaint responses, which included the Conservation Officer’s 3 May 2017 consultee response and the Council’s 22 May 2017 pre-application advice;
• The approved planning application that Mr B refers to.
5. I also gave Mr B the opportunity to comment on a draft version of this statement.

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What I found

Summary of what happened

6. In March 2017, Mr B submitted a request for pre-application planning advice for a proposed partial change of use of a Grade II Listed dwelling to a café/restaurant with holistic therapy rooms.
7. The Council’s response included a summary of the Conservation Officer’s comments, which said he:

“has concerns relating to the change of use and the harm that may derive from this. However, further information is required before Conservation can clarify whether the principle would be acceptable.”

8. The Council’s response concluded that the proposed development:

“may be considered favourable, dependent upon the specific details of any application submitted for planning permission in light of existing planning policies. This is on the provision that full cooperation is undertaken with the Council’s Conservation officer regarding any external alterations to the design (including a disabled access ramp) and choice of materials to ensure that it respects the character and appearance of the area…”

9. In subsequent correspondence in June 2017, the Interim Development Manager said:

“the principle may not be acceptable to change the use from a dwelling to a commercial use…….access into the building and within the building is one element of concern…..there are several solutions available in regard to integrating access ramps into a listed building, however due to the building not being a public building at present it is questionable whether this is the right building for the use you propose. A lot more work needs to be undertaken to demonstrate the proposal would be acceptable in regard to meeting the requirements of the Planning (Listed Buildings and Conservation Areas) Act 1990. I note from the plans submitted that they are inaccurate as they indicate level access into the building….”

10. Mr B did not pursue the development. But in 2018, the Council approved a separate planning application for the change of use of the building to a residential care training centre.
11. Mr B complained to the Council, as he felt the Council’s pre-application advice had suggested his proposal would not be allowed, yet it had now approved a similar development . In the subsequent complaint correspondence, the Council explained why Mr B’s pre-application advice request was deemed to be materially different to the planning application that was subsequently approved. In particular:
• Mr B’s plans did not accurately show the layout of the building, so the impact of the proposed numerous uses could not be established, in addition to unknowns about the internal arrangements associated with those uses
• Mr B’s proposal included additional car parking, ramps to facilitate access, and additional buildings within the site, whereas the approved development did not propose any external alterations, the proposed parking area utilised the existing hard standing, and no additional hard landscaping was proposed.

Assessment

12. In my view, the Council’s response to Mr B’s pre‑application advice request is commensurate to the level of information/detail he provided about his proposed development. In the absence of detailed/accurate information, the Council was entitled to highlight concerns about how the Listed Building might be affected by the uses/works he was proposing.
13. In comparison, the subsequent planning application (for a materially different use to that proposed by Mr B), contained full details of the development. This enabled the Council to fully assess the impact on the Listed Building and its setting.
14. I therefore find there is insufficient evidence of fault by the Council to warrant the Ombudsman pursuing the matter further.

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Final decision

15. The Ombudsman will not investigate Mr B’s complaint. This is because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman