Summary: The Ombudsman will not investigate Ms X’s complaint about the Council’s pre-application planning advice. This is because it is unlikely we could show the Council wrongly advised Ms X or that this caused the injustice she claims.

The complaint

1. The complainant, Ms X, complains the Council advised her to apply for planning permission but then refused her application. She says she has lost £3,000 and wasted seven months of her time.

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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.
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

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How I considered this complaint

6. I reviewed Ms X’s complaint and the Council’s final response. I shared my draft decision with Ms X and considered her comments.

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What I found

7. Ms X would like to build a new house on her land. She says her agent spoke to a planning officer at the Council and he suggested she apply for planning permission to convert an existing building as this was something he could support. She spent approximately £3,000 in fees putting together the application but the planning officer recommended the proposal be refused. She would like the Council to reverse its decision, refund her costs and provide the planning officer with further training.
8. The Ombudsman will not investigate this complaint. There is never any guarantee that a planning application will be approved; all applications are made at risk they will be refused.
9. Ms X says the planning officer suggested she apply for planning permission but the Council says this was as an alternative to a different proposal which would not have been approved. There is no record of the advice provided but the Council says the discussion was short and options were not discussed in detail. It says the officer did not express support for any of the options and any advice provided is informal and non-binding.
10. There is no contemporaneous record of the planning officer’s advice to Ms X and we cannot decide between her version of events and that of the planning officer. I do not consider it likely Ms X would have applied and referenced the pre-application advice provided by the officer, had they indicated the proposal would be refused, but I cannot say the officer gave any guarantee that planning permission would be granted or, therefore, that Ms X incurred her costs with the belief the application could not be refused. It is therefore unlikely we could say there was fault in the advice provided or that this caused Ms X significant injustice.
11. The only way to obtain a formal decision as to whether a proposal is acceptable is to apply for planning permission; each case is then considered on its merits. Ms X does not suggest the Council’s decision to refuse planning permission was wrong but this is the cause of the injustice she claims. Ms X clearly felt the benefit of gaining planning permission for development on her land outweighed the cost of her application and associated fees and it was only when the Council refused the application that Ms X’s costs appeared wasted. If Ms X considers the Council’s decision to refuse her application was wrong it would have been reasonable for her to appeal to the Planning Inspectorate. The Ombudsman cannot overturn the Council’s decision or direct it to grant Ms X planning permission.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because it is unlikely we could show the Council wrongly advised Ms X or that her costs are the direct result of fault by the Council.

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Investigator's decision on behalf of the Ombudsman