The Ombudsman's final decision:
Summary: Mr B complained about the Council’s consideration of planning matters relating to solar panels and sheds he erected on his land. He considered the Council considered them on the wrong planning basis and charged him too much in planning fees. There was fault in the Council’s advice which caused injustice to Mr B. The Council will apologise and refund the extra planning fee paid.
- Mr B complains the Council:
- gave him incorrect advice about whether he needed planning permission for solar panels he intended to erect;
- gave him inconsistent advice and information about the types of applications he needed to make to regularise the development which has meant he has paid too high a fee;
- delayed in validating the applications; and
- considered the applications on the wrong planning basis.
What I have investigated
- I have investigated the first three points. I explain at the end of this statement why I have not investigated the last point.
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)
- 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)
- 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))
- 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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I interviewed planning officers on the phone about the complaint and action taken by the Council. I sent a draft of this statement to Mr B and the Council and considered their comments.
What I found
Summary of key events
- Mr B made a pre-planning application enquiry of the council in January 2017. This was to see if his proposals to erect solar panels on his land needed planning permission.
- Mr B did not receive any response from the Council so erected the panels in the summer of 2017.
- In December that year the Council wrote to Mr B about the panels. An officer visited the site in January 2018 and advised him that the solar panels needed planning permission as did two sheds that were also on the land.
- Mr B asked the Council for the necessary forms and in May 2018 he submitted a householder application for the solar panels. In late June the Council told him he needed to make a full planning application (rather than a householder one) for the panels and the sheds for which there was a further fee. In the middle of August Mr B submitted three householder application forms for the panels and the two sheds. The Council wrote to him again at the beginning of September saying that he needed to complete one full planning application form for the panels and the sheds together. It said that doing it this way would be cheaper than making three separate applications. It said that the fee had increased now it knew the size of the buildings so there was a further amount to pay. Mr B duly made the application and paid the extra fee.
- In October Mr B complained to the Council. The Council responded to Mr B accepting the advice and service he received in response to his pre-application enquiries in early 2017 was not satisfactory. There was also a difference of view between the Council and Mr B as to how the land where the panels are sited should be considered.
- When the application had been registered it was allocated to a planning officer who visited the site. He advised Mr B that the existing application would be amended to just the panels and he needed to submit a separate application for a certificate of lawful development for the sheds. This was because the sheds were contrary to policy so the Council was unlikely to approve a planning application for them.
- The Council approved both applications. For the panels in January 2019 and for the sheds in May 2019
Advice in January 2017
- The Council accepts Mr B did not receive a satisfactory service. This is because it took a year to respond to his pre-planning application enquiry. However it does not accept it told him that planning permission was not needed for the development as carried out.
- The Council has said the officer who Mr B saw has left the Council and there is no record of any conversation. A key point here has been the difference of view between Mr B and the Council about the status of the land where the solar panels are located. Mr B considers this to be garden land forming part of the curtilage of his property; the Council does not agree. This is relevant to whether the solar panels would need planning permission and to the consideration of the planning applications. It is not for me to decide on this disagreement between Mr B and the Council. I explain more about my views on this at the end of the statement.
- It is likely that an officer would have told Mr B that the panels did not need planning permission if Mr B had described them being in his garden. But the key issue here is that this would have been of little consequence if the Council had dealt with his pre-planning application enquiry within a reasonable time. As it was it took a year. The Council has accepted this was unacceptable and refunded Mr B half the fee (£31) when he complained.
- Where there has been fault I have to consider what impact this has had on the person complaining. Here Mr B should have received timely advice that his proposal would need planning permission. Had he received that then he could have applied before erecting the panels. But Mr B did decide to go ahead with the installation before receiving a written response from the Council. There was then a disagreement about whether planning permission was needed but ultimately Mr B accepted the Council’s position and submitted an application which was approved.
- The delay byt the Council in responding to the pre-planning application advice has not made a significant difference to Mr B’s position.
The planning applications
- The Council accepts an officer gave the wrong planning application forms to Mr B in early 2018 but the Council says this was probably because Mr B described the land where the sheds and panels were located as garden land. This was not fault.
- The Council told Mr B the application was not in the right form and advised him what to do. Again I do not consider there was any fault here. Mr B did not do as the Council had advised as he submitted three householder applications. The Council reiterated its position that he needed to submit one planning application covering the sheds and the panels. I understand this was an attempt to be helpful as this would be cheaper than three separate applications. But there had been a significant change by this point. In submitting the applications Mr B had included a design and access statement. This made it clear that the sheds were not part and parcel of the solar panels development but were in domestic use. It also said how long they had been there. This meant it was wrong the Council advised him to continue with the one, combined, application.
- The Council has commented that the planning and support team considered the information submitted to make sure all the necessary information was provided in order to validate the application. But the content and implication of the design and access statement was only considered at the point the planning application was assigned to the case officer. I understand that this was the process following but there was more than an assessment of validity or not, specific advice was given to Mr B about the type of application he should make. Based on the information he had provided that advice was wrong.
- Where there has been fault we look to the Council to put the complainant back in the position they would have been in had there been no fault. Here Mr B paid a fee of £462 for the application for the panels and the sheds. He then he had to pay again for the certificate of lawful development certificates for the sheds. Had the Council told him that was the way forward then he would have paid £234 for the application for the panels alone. This means he has paid an extra £228 which the Council should refund.
Time taken to validate the applications
- Once a planning application has been received, accompanied by all the necessary information, it should be validated as soon as is reasonably practicable. The LPA should then start the determination process.
- Once an application has been deemed valid and the determination process commences, the application is placed on the planning register and given an application reference number.
- Normally, most minor and small-scale applications should be validated within three to five working days from the date of receipt. Major applications should be validated within ten working days.
- It took two months to validate the applications for the sheds. This was because of the disagreement between Mr B and the Council about the status of the land. I explain below why I cannot come to any view on whether there was fault in the Council’s position. As the time taken to validate the application was inextricably linked to this point I cannot say there was fault
- It took four months to validate the application for the solar panels because of the events I refer to above. But Mr B did not follow the advice the Council gave at the outset so there it was not fault by the Council which caused the delay.
- The Council will, within a month of the final decision, apologise to Mr B and pay him £228.
- There was fault by the Council which has caused injustice to Mr B.
Parts of the complaint that I did not investigate
- Mr B considers the Council considered the applications on the wrong planning basis. This is related to whether the land was within the curtilage of Mr B’s house or on grounds associated with the property.
- Government advice is that if a planning application is deemed invalid, the Council should notify the applicant of the reasons. If an applicant disagrees with a decision not to validate a planning application and is unable to resolve the dispute with the local authority there is a procedure set out in Article 12 of The Town and Country Planning (Development Management Procedure) (England) Order 2015. If necessary an applicant can, after the statutory time period for determining the application has expired, appeal against non-determination. In considering such an appeal the inspector will consider both the dispute regarding invalidity and the merits of the application itself.
- If Mr B wanted to test whether the Council was right about the basis on which it was proposing to consider the applications it was open to him to submit the application in the form he considered appropriate. If the Council then refused to validate it he could use the process I refer to above. This means it is not for me to consider the disagreement between Mr B and the Council about the correct planning basis for the determination of the application for the solar panels.
Investigator's decision on behalf of the Ombudsman