Summary: The Ombudsman will not investigate Mr X’s complaint about advice provided by the Council’s duty planner service. This is because it is unlikely we would find fault by the Council causing Mr X significant injustice.

The complaint

1. The complainant, Mr X, complains about the advice provided by a member of the Council’s duty planner service.

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The Ombudsman’s role and powers

2. 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’. 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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

4. I reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and invited his comments.

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What I found

5. Mr X contacted the Council’s duty planner service for advice on a development opportunity in May 2017. He says the Council confirmed the site was not part of the greenbelt, meaning a planning application was more likely to be approved, but did not tell him the land was ‘open space’, meaning development would likely conflict with its local development plan.
6. The Council says its duty planner service is not intended to provide detailed advice on specific proposals but that its records show it advised Mr X of the presumption against planning permission for new dwellings in the open countryside without justification.
7. Mr X and the Council agree the duty planner advised Mr X to apply for pre-application advice, but Mr X did not see the point in this as the officer advised him it is not binding. He therefore appointed an architect to draw up plans and applied for formal planning permission at a cost of almost £2,000. Shortly after he submitted his application, he says the Council contacted him to advise it was unlikely to grant permission as the site is in open countryside. The Council has not yet decided the application as it is waiting for further information from Mr X, so there is no formal decision about whether his proposal is acceptable.
8. The Ombudsman will not investigate this complaint. The substantive issue in this case concerns the content of Mr X’s discussion with the Council in May 2017 and it is unlikely we could get to the bottom of exactly what was said. Mr X and the Council have put forward conflicting statements and, on balance, it is likely we would accept the Council’s records as they were produced at the time.
9. However, even if we could say the Council did not tell Mr X about its policy on ‘open spaces’, as contained within its local development plan, it is unlikely we would recommend the Council refunds his costs. It is accepted the officer told Mr X he should apply for pre-application advice but Mr X chose instead to put in a full application for planning permission; as a result he had to provide plans and pay a full application fee which is much higher than the cost of pre-application advice. These costs were incurred with no guarantee of success but Mr X stood to gain significantly in the event planning permission was granted. This is a risk most planning applicants will face and we could not recommend the Council reimburses Mr X for his costs.
10. The Council has not yet decided the application and Mr X has no formal decision on whether his proposal is acceptable. It is for Mr X to decide whether to proceed with the application and appeal against any refusal, or to withdraw his application. Alternatively he may appeal to the Planning Inspectorate straight away on the grounds of non-determination, as the Council has already explained.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault by the Council causing Mr X significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman