The Ombudsman's final decision:
Summary: Mr X complains the Authority provided the wrong advice on a planning matter causing him to suffer financial loss. The Ombudsman finds no fault in the way the Authority gave advice.
- Mr X complains the Authority provided the wrong advice at the pre-application stage of a planning application. He says because of this he incurred avoidable costs on a planning application.
The Ombudsman’s role and powers
- 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)
- We cannot question whether an authority’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something an authority has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- If we are satisfied with an authority’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)
How I considered this complaint
- I spoke to Mr X and I reviewed documents provided by Mr X and the Authority. I gave Mr X and the Authority the opportunity to comment on a draft of this decision and I considered the comments provided.
What I found
- An authority must decide on a planning application in line with its local development plan, unless there are material considerations that suggest otherwise.
- Pre application advice can help provide an understanding of the relevant planning policies and other material considerations associated with a proposed development.
- The Authority will continue to conserve and enhance the historic environment and will support development which recognises, protects and enhances the District’s distinctive landscape and heritage assets and their settings. These assets may be designated or undesignated heritage assets.
- Mr X asked the Authority for pre-application advice on a development at his property.
- An Officer considered the proposal taking account of the local development plan and policies. The Officer said “the principle of the proposed development is considered likely to be acceptable. However, at this stage it is not possible to comment on the design and appearance of the proposal and further consideration would be made at application stage when full plans and elevations would be submitted.” The Officer also warned this advice was an informal officer’s opinion and did not prejudice, nor bind any future decision made by the Authority.
- I note the Officer did not say they considered the property to be a non-designated heritage asset.
- Mr X applied for planning permission.
- A Case Officer considered the application and consulted with the Historic Environment Team. The Team considered the property a non-designated heritage asset that the Authority should retain and conserve.
- The Case Officer noted National and Local Plan policies sought to protect non- designated heritage assets. He recognised it could be difficult to identify such assets but this was an important material planning consideration. The Case Officer found the proposed development would have an unacceptable impact on a non-designated heritage asset and therefore he recommended the Authority refuse planning permission.
- The Authority refused planning permission. Mr X appealed but the Planning Inspector dismissed his appeal for the same reasons.
- Mr X complained to the Authority that it had given incorrect or incomplete pre-application advice. He said the Officer should have consulted with a Heritage Officer and identified the property as a non-designated heritage asset.
- The Authority said the property was not a listed as a heritage asset, it was not in a conservation area and it had been extended in the past. Taking these points into account it did not consider it unreasonable that its Officer did not consult with a Heritage Officer. It was satisfied its Officer exercised her best judgement in good faith.
- We do not investigate complaints more than 12 months after the relevant event unless there are good reasons. The Authority provided pre-application advice more than 12 months ago however, Mr X did not apply for planning permission until recently. Mr X was previously unaware of any possible fault and so could not have complained earlier. I therefore consider it appropriate to investigate his complaint.
- Whether an Authority decides a property is a non-designated heritage asset is a question of judgement. It is up to each officer to decide based on the information available and it is possible one officer will reach a different judgement to another.
- The Officer who provided the pre-application advice did not consider the property to be a non-designated heritage asset. I note the Authority has given clear reasons in support of her reaching this view. I am also mindful there was no obligation for the Officer to consult with anyone before reaching this judgement. Bearing these points in mind, I am satisfied the Officer followed a proper decision making process. I therefore cannot find the Authority at fault in its provision of pre-application advice.
- I am also mindful the Authority made clear to Mr X the advice was an Officer’s opinion only and it was not bound by her view. Mr X therefore knew or, should have known that the Authority could reach a different decision on the planning application and so any costs incurred were at his own risk.
- I have completed my investigation. This is because I find no fault in the way the Authority gave pre-application advice.
Investigator's decision on behalf of the Ombudsman