The Ombudsman's final decision:
Summary: Mr X complained the Council gave incorrect pre-application advice. This led to him submitting a planning application that had no chance of being approved. We have found fault with the Council for issuing poor advice. This resulted in Mr X proceeding with an application and paying architect fees. The Council has agreed to pay Mr X the value of the architect fees to remedy his injustice.
- Mr X complained the Council made an error when it gave him pre-application planning advice. He said:
- the Council advice was generally supportive of his proposal;
- it asked him to provide more information and submit a planning application;
- he paid £2000 in architect fees to prepare the planning application and drawings;
- when he submitted the application, the Council realised its mistake;
- the Council had failed to identify the proximity of protected heathland to the proposed development site;
- this meant his application had no chance of being approved;
- the Council offered Mr X the chance to withdraw his application and get his fee back;
- he asked for the Council to reimburse him for the architect fees he had incurred as a result of the Council’s poor advice; and
- the Council refused, stating the advice was an informal officer’s opinion.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’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)
- 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)
How I considered this complaint
- I have considered Mr X’s complaint and supporting information.
- I have also considered the Council’s response to Mr X and to my enquiries.
- I have written to Mr X and the Council with my draft decision and considered their comments.
What I found
Pre-application planning advice legislation
- National planning guidance sets out the process and expectations of pre-application discussions.
- It says a prospective applicant should expect a clear, timely, and authoritative, view on the merits of a proposed development – as well as clear advice on consultation requirements and the information to be submitted with a formal planning application.
- It goes on to say if the level of service received is considered by the prospective applicant to have fallen below expectations, they may wish to raise the matter directly with the local planning authority, if necessary, through its formal complaints procedure. Where a fee has been paid for pre-application advice, the scope for a full or partial refund will depend on the terms and conditions of any agreement that has been entered into.
- The Council’s website includes information about its pre-application advice service. It says before you submit a planning application, you can get advice from the Council and says this can help you make a better application and can save time and money. It sets out the different pre-application fees.
- In July 2018, Mr X submitted a request for pre-application advice to the Council. This was for a dwelling within the curtilage of an existing property. It included a location plan, a proposed site layout and an indicative layout of the house.
- In August, the Council responded. It said the site lies within the urban area where the principle of development is acceptable. It considered the impacts on the character of the area and on neighbouring amenity and offered advice to limit the impacts. It also identified the site lay within 5km of internationally designated heathland so a Habitat Regulations appropriate assessment would be required.
- The letter caveated the advice is given in good faith, without prejudice and cannot guarantee the outcome of any subsequent application. It highlighted the advice was based on current planning policies. It said there was no guarantee the advice would be relevant if there had been significant changes in planning policy, the site and its surroundings by the time a formal application was submitted.
- Over the following month Mr X and the Council were in regular contact as Mr X tried to clarify issues raised in the Council’s response. Mr X asked his architect for drawings to show proposed elevations for the planning officer to assess further. This work cost £360. On 27 September, the Council emailed Mr X and said he would need to submit further formal pre-application enquiries submission if he wanted the Council to respond to further details about the proposal or he had the opportunity to test his proposal via the planning process.
- In early November, Mr X agreed plans and the associated fee with his architect. He submitted a planning application on 13 November. The architect sent Mr X an invoice for £1440 on 19 November for the work he had done in relation to the planning application.
- On 28 November, the Council contacted Mr X about his application. It explained the Council had received his application, but it had not yet validated it. It then referred to the pre-application advice it had given in August, specifically in relation to the distance of the site from the protected heathlands.
- The Council said its assessment had been incorrect and the site was actually within 400m of the protected heathlands. It explained its previous advice that the Council would need to undertake an appropriate assessment would not be acceptable due to the proximity of the site.
- The Council went on to confirm, because of this, the proposal could not benefit from planning permission. It quoted Local Plan policy ME2 which read ‘in accordance with the advice from Natural England…no residential development will be permitted within 400m of protected European and internationally protected heathlands…’.
- It apologised for failing to bring the information to Mr X’s attention during the pre-application engagement and for the inconvenience caused. It said it could continue to validate and progress the application but given the conflict with the Local Plan, it anticipated that the application would be refused. It also offered to return the planning fee should Mr X choose to withdraw the application in light of the new information.
Negotiations and withdrawal
- Over the coming months, Mr X attempted to negotiate with the Council with the aim of the proposal going ahead. Issues such as the physical barrier of a major road, how the distance was measured, and the type of residential development were discussed. However, the Council maintained its position that the proposal could not achieve planning permission.
- On 13 December, Mr X withdrew his application and requested the Council refunded his planning application fee.
Request for compensation
- Following this, Mr X contacted the Council and said that he had spent time and money since receiving the pre-application advice. He asked the Council to considering compensating him for the fees he had incurred.
- The Council responded. It said it had informed Mr X of the error in the pre-application advice as soon as it became evident. It said the pre-application advice did not encourage Mr X to submit a planning application. It confirmed it would not accept responsibility for Mr X’s post pre-application expenses.
The complaint process
- Mr X made stage 1, 2 and 3 complaints to the Council about its pre-application advice and its subsequent refusal to accept responsibility for his expenses.
- In response, the Council argued the pre-application advice was the personal opinion of a planning officer and was not binding on the Council. It highlighted the information about the heathlands was in the public domain so Mr X could have verified the advice the given by the Council.
- The Council maintained its position that although Council’s accepted it had made a mistake in its pre-application advice, this action could not be extrapolated to infer the Council takes responsibility for any costs incurred in the activities leading up the submission of the planning application.
- Mr X proceeded with his planning application and commissioned full architect plans after he had received the Council’s pre-application advice.
- In its email of 27 September, the Council gave Mr X the option of testing his proposal through further pre-application advice or by submitting a planning application.
- If Mr X had received the correct information about the heathlands as part of the pre-application advice, on balance he would not have proceeded with the planning application.
- The Council was at fault for failing to identify the proximity of the heathland in relation to the proposed site. The Council has acknowledged this mistake and has apologised for it.
- In its response to Mr X’s complaint, the Council said the information about the heathland was in the public domain so Mr X could have verified the Council’s pre-application advice. Mr X had paid for the Council for its pre-application advice and should have been able to rely on it.
- The Council was right to allow Mr X to withdraw the application and to refund him the planning application fees.
- However, this mistake caused Mr X to experience the injustice of paying £1800 in architect fees for pre-application drawings and a planning application that would have no chance of being approved.
- The Council was at fault for failing to accept responsibility for Mr X’s expenses which were incurred on the basis of the Council’s poor advice.
- I therefore recommend the Council pay Mr X £1800 to remedy this injustice. This will put Mr X back in the position he would have been if it weren’t for the fault.
- Within 4 weeks of my final decision, the Council will:
- Apologise to Mr X for the inconvenience caused by failing to accept responsibility for his expenses incurred after he received pre-application advice; and
- Pay Mr X £1800 to redress the architect fees he paid based on the Council’s advice.
- Generate a ‘checklist’ of key issues/policies that would automatically result in the Council refusing a proposal; and
- Ensure all planning staff are aware of this list.
- I have found fault with the Council. Its mistake resulted in Mr X proceeding with a planning application and paying an architect for a development that had no chance of being approved.
Investigator's decision on behalf of the Ombudsman