Summary: Mrs X complained the Authority failed to provide her with written pre-application advice that she had paid for. Despite early, positive assurances from the planning officer, her planning application was eventually refused. Mrs X claims significant sums of money she says were lost as a result of the Authority’s actions. We found fault in the way the Authority made its decision, but we do not recommend a further remedy beyond the Authority’s offer to refund the fee for pre-application planning advice.

The complaint

1. Mrs X complained she was assured her proposed development would be supported when she was given verbal pre-application advice by a planning officer.
2. Mrs X says that, later, her planning application was refused, but she had already spent a large amount of money relying on the advice.

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The Ombudsman’s role and powers

3. 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 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)
4. 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)

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How I considered this complaint

5. I read the complaint and discussed it with Mrs X. I read the Authority’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I also discussed the complaint with a planning manager.
6. I gave the Authority and Mrs X an opportunity to comment on my draft decision and took account of the comments I received.

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What I found

Planning law and guidance

7. Authorities may give pre-planning application advice and may charge a fee for this service. If written advice is required, Authorities usually require details including:
• a clear description of the proposed development and its intended use; and
• a plan showing the site location.
8. Where an Authority charges a fee to provide a service, it can create a contract. A contract for a service must be delivered in accordance with its written conditions.
9. The courts expect services to be carried out with reasonable care and skill at the level of the average practitioner in the relevant field of work. Remedies for breaches of contract can be sought in the civil courts.
10. Pre-application planning advice from an Authority officer will be the opinion of the individual officer: it cannot bind the discretion of any subsequent decision-maker.
11. Planning applicants can also seek advice from professional advisors, such as planning consultants and architects. These professionals usually provide advice under a contract where a fee is paid. However, it is possible for liability to arise outside a contract, where an inaccurate statement is made honestly but carelessly usually in the form of advice given by an individual with special skill or knowledge to another who does not possess this skill or knowledge.
12. Authorities should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
13. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
14. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.

What happened

15. Mrs X had an option to buy an agricultural building with the aim of converting it to a mixed business and residential use.
16. She wanted pre-application planning advice and paid a fee to the Authority. The Authority should have provided a written response to her within 42 days. A planning officer met Mrs X on site and discussed the proposal. Mrs X said the officer was very supportive, saying that the proposal met with planning policy.
17. The planning officer did not provide a written response to Mrs X. Mrs X said she submitted a planning application, relying on the planning officer’s advice because her option to buy the land was time limited. She said she also sold her house to secure the money she needed to buy the land and carry out development works.
18. The planning manager said he discussed the application with the planning officer. The planning officer had supported the application, partly because it would promote employment in the countryside. This was because it included a workshop as well as holiday units.
19. The planning manager said that, after considering the plan, he thought the workshop was part of the residential unit, not separate from it, as it was below accommodation and connected by an internal staircase. The planning manager thought, because of this, the use would primarily be residential, rather than a separate residential and business or industrial use.
20. The planning manager also said the plans were:
• inaccurate, showing window openings in the wrong place; and
• lacking important information, such as structural details that demonstrated how conversion was possible.
21. The planning manager said that these details were particularly important, as the barn was an historic and valuable heritage asset.
22. Mrs X became aware of the difference of opinion between the planning officer and the manager after she submitted her planning application. Mrs X says the planning manager advised her that she could withdraw her application and submit a revised plan. The planning manager says he made it clear that while development of some kind could be supported, he would not support what had been proposed in the planning application. He said a development with a separate workspace would probably get support from policies that encouraged employment, but if the workspace was too closely connected to residential elements, it is likely it would not.
23. Mrs X says she spoke to planning consultants who were working for the estate agent. Mrs X says the planning consultants advised her not to withdraw her application, but to go forward with it because the Authority:
• had indicated it would approve her proposals; and
• it was at fault for giving misleading advice.
24. The application was considered by a planning committee, which refused it. Mrs X says she did not appeal against this decision because time was running out and she had no clear idea of what type of development the Authority might approve on the site.
25. The planning manager said this case was complex and it would always have been difficult to provide written advice within the 42-day time target. He accepts though that the planning officer should have either provided the written advice or informed Mrs X there would be some delay. The planning manager said the delay was because the officer took unexpected leave. The planning manager also said that:
• the Authority’s pre-application advice policy does not require cross checking of advice and the warning; and
• the advice given is the opinion of the officer and cannot bind the authority; and
• the warning that advice is the opinion of the officer, not the authority, is not given until written advice is sent.
26. The Authority has already apologised and offered to refund the fee it charged for pre-application advice, but Mrs X has refused this offer. She claims large sums in abortive costs and consequential losses.
27. The Authority tells me that it intends to learn from what has happened and will look at the information about pre-application advice on its website to ensure:
• it is clear from the outset that an officer’s advice does not bind the final decision-maker; and
• that its 42-day deadline may not be met in complex or controversial cases, so extensions may need to be agreed.

My findings

28. The Authority said it would provide written advice to Mrs X, but it did not do so within its time target or inform her there would be a delay. This is fault.
29. Whenever we find fault, we must decide if it caused a significant injustice to the individual complainant.
30. I do not consider we can show Mrs X was caused a significant injustice by the fault or that we should recommend a further financial remedy, for the following reasons:
• Mrs X chose to submit a planning application, even though she had not received the written advice she was entitled to expect. I understand Mrs X had reasons for acting as she did, but other choices might have been available to her. She might have delayed her decisions until she had received written advice from the Authority or commissioned specialist planning advice herself from an independent consultant.
• Even if there had been no fault, and written advice had been provided on time, the outcome might have been the same. The planning officer might still have reached a different conclusion to the planning manager.
• The difference of opinion between the planning manager and officer is about how a layout plan should be interpreted in terms of planning uses. Mrs X and her advisors agreed with the planning officer, but eventually, the planning committee agreed with the planning manager’s advice. Planning decisions are matters of fine judgement and outcomes are never certain.
• The planning manager’s opinion did not bind the Authority’s planning committee either. Mrs X could have withdrawn her application, but after receiving advice from independent planning consultants, she chose to continue. Her losses may well result from the advice given by these individuals.
• Mrs X also employed an architect, who drew up her plans. An architect might be expected to know how planning authorities in their area generally apply their planning policies and so what might or might not get approved.
• Property transactions and developments may deliver a benefit, but outcomes are never certain: there is always a risk that things might go wrong. Individuals who take risks must make their own judgements and often pay for professional advice to inform them.
• Mrs X could have appealed against the Authority’s decision, but she chose not to because of the pressure of time on the deal she had made with the seller. Though there was fault in the way the Authority has acted, we cannot hold it responsible for the decisions and choices Mrs X has made along the way.
• Mrs X is asking us to recommend compensation for substantial financial losses. Other parties have been involved here, and it is quite possible that they might have contributed to what has happened. The Ombudsman is not a court and is not well placed to decide liability for large sums in circumstances such as this, much of which may not have been foreseen by the Authority when it offered to provide Mrs X with pre-application advice.
31. For these reasons, while there was some fault in the way the Authority dealt with Mrs X, I should not recommend a remedy beyond that already offered by the Authority.

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Final decision

32. I have completed my investigation because, while there was fault in the way the Authority l dealt with Mrs X, the remedy it had already offered her is satisfactory.

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Investigator's decision on behalf of the Ombudsman