The Ombudsman's final decision:
Summary: Mr B complained the Council failed to address all the issues he raised when providing him with pre-application advice and gave him wrong information. There is no fault in the pre-application planning advice the Council gave. The Council failed to refer the third pre-application advice request to an external officer though which raised Mr B’s expectations. An apology is satisfactory remedy. I have not investigated Mr B’s concern about how the Council processed his planning applications as he had a right of appeal.
- The complainant, whom I shall refer to as Mr B, complained about the way the Council dealt with his requests for pre-application advice and planning applications. Mr B complained the Council:
- failed to address all the issues he raised and gave him wrong information in its pre-application planning advice in 2018;
- failed to respond as agreed in January 2019;
- granted an invalid planning permission to him in 2016;
- delayed considering his first planning application in 2019; and
- relied on false information when making a decision on his two planning applications in 2019.
What I have investigated
- I have investigated Mr B’s concerns about the pre-application planning advice given by the Council. The final section of this statement contains my reasons for not investigating the rest of the complaint.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)(a), 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
- As part of the investigation, I have:
- considered the complaint and Mr B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided.
What I found
- Mr B runs a business in the greenbelt. Mr B secured planning permission for a temporary caravan on site in 2016. That permission expired in May 2018.
- Mr B put forward three pre-application planning advice requests in 2018. The third request proposed retention of the temporary agricultural dwelling as a permanent dwelling. In its response the Council told Mr B siting a permanent dwelling in the greenbelt would be considered inappropriate development. The Council told Mr B it would not approve such a development unless he could show very special circumstances to outweigh the potential harm. The Council told Mr B he would need to show he needed to be on site to respond to emergencies and would need to show the business was expanding. The Council referred to the relevant policies which included the requirement for the agricultural activity concerned to have been established for at least three years, have been profitable for at least one of those years, to be currently financially sound and to have a clear prospect of remaining so. The Council told Mr B he would need to provide comprehensive details about the livery services taking place on site and the agricultural activities taking place or proposed. The Council reiterated the same advice in January 2019.
- Mr B sought clarification on the pre-application advice in January 2019. The Council told Mr B it had referred the matter to one of its external officers who would be in touch. Mr B received no further contact and put in a planning application in 2019. The Council refused the application as it did not consider Mr B had shown an essential need for a worker to stay on site. Mr B put in a further planning application after beginning some building work on site to implement some of his other permissions. The Council considered he had shown the need for a temporary caravan on site to give him the opportunity to develop the business and granted permission for that.
- Mr B says the Council, when giving him pre-application planning advice, failed to give him complete advice and gave him wrong information. The evidence I have seen satisfies me Mr B asked the Council for pre-application advice on three occasions in 2018. I have considered the three requests for pre-application advice and the various pre-application advice responses given by the Council. In each case I am satisfied the Council gave Mr B complete advice based on the proposals he had put forward. I have seen no evidence to suggest the Council failed to address all the issues he raised or that it gave him wrong information. I therefore do not find the Council acted with fault in giving Mr B pre-application planning advice.
- In reaching that view I am aware Mr B says the Council should have told him he needed to put extra liveries on site and complete the buildings he had received planning permission for to secure permission for a permanent dwelling. Having considered the pre-application planning advice request though, I am satisfied the Council, when responding, made clear siting a permanent dwelling in the greenbelt would be considered inappropriate development. The Council also made clear it could not approve that unless Mr B had shown very special circumstances to outweigh the potential harm. I am satisfied in giving that advice the Council told Mr B he needed to show the business needed him to be on site.
- The Council also gave Mr B details of the relevant parts of the policy which he needed to meet to secure a permanent permission. The Council also told Mr B he would have to provide details in any planning application of the livery services taking place on site and the agricultural activities taking place. So, I am satisfied the Council gave Mr B comprehensive advice and at no time misled him into believing he would secure permission for a permanent dwelling. Having considered the report for the planning application Mr B put in, which resulted in a refusal of permission for a permanent dwelling, I have seen nothing to suggest the information in the report contradicted the earlier information the Council had given Mr B at pre-application stage. It seems to me Mr B expected the Council to give him advice on what to put in his planning application but that is not the Council’s role. As I have found no fault in the pre-application advice given by the Council I have no grounds to criticise it.
- I am concerned though the Council raised Mr B’s expectations in January 2019. By that point Mr B had received two lots of advice on his third pre application advice request. However, when he sought further clarification from the Council in January 2019 it told him it had referred the matter to one of its external officers who would be in touch. The Council accepts the officer failed to contact him. That is fault. I recognise by that point the Council had given Mr B two lots of advice on one pre-application, which is more than the Council would normally do. Nevertheless, there is clear evidence the Council had said one of its external officers would contact Mr B about his outstanding concerns. That clearly raised Mr B’s expectations. I consider an apology for the failure to follow up on what the Council had agreed to do in January 2019 is satisfactory remedy. I take that view as I have found no fault in the content of the Council’s response to Mr B’s pre-application planning advice requests.
- Within one month of my decision the Council will apologise to Mr B for its external officer failing to contact Mr B in January 2019 about his application for pre-application planning advice, as it agreed to do.
- I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.
Parts of the complaint that I did not investigate
- Mr B also wants to complain about the processing of his planning applications. Mr B says the Council delayed processing his first planning application in 2019 and included false information in the report. Mr B says if the Council had processed that application properly he would have secured permission for temporary accommodation on the site earlier given his later application was a resubmission with no new information and he achieved temporary permission with that application.
- As I said in paragraph 5, the Ombudsman does not have jurisdiction to consider a complaint about matters where there is an alternative route for remedy. If Mr B believed the Council’s refusal of his first application in 2019 was flawed he could have appealed that decision. Similarly, Mr B could have appealed the decision not to give him permission for a permanent dwelling when the Council granted planning permission for a temporary dwelling. I therefore do not consider the Ombudsman has jurisdiction to consider how the Council dealt with those planning applications.
- I have also not investigated Mr B’s concerns about what he says was an invalid permission granted by the Council in 2016. Mr B says he became aware the permission was invalid, which the Council disputes, in 2018. As I said in paragraph 4, the Ombudsman will not normally consider a complaint about matters which occurred more than 12 months ago. As I am satisfied Mr B had concerns about the validity of the 2016 planning permission in 2018 I see no reason why he could not have complained to the Ombudsman at the time. I therefore do not intend to exercise the Ombudsman’s discretion to investigate this part of his complaint.
Investigator's decision on behalf of the Ombudsman