Summary: Mr X complained about the Council’s handling of planning matters for a change of use of a building. The Ombudsman discontinued his investigation because parts of the complaint were late; concerned legal issues, which were for the courts to determine; and Mr X could reasonably have used his legal appeal rights.

The complaint

1. Mr X complains about the Council’s handling of planning matters about a change of planning use for a building because:

• it unreasonably refused to agree changes to the approved development after its completion meaning Mr X needed to make a planning application; and
• it then took 16 months to decide that planning application

2. Mr X says the Council’s failure to be pragmatic and reasonable in dealing with the development caused him unnecessary planning and legal costs and a lost sale, rental income, and consequential costs for the building. Mr X wants the Council to compensate him for all unnecessary costs and lost income.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
4. While the Local Government Act 1974 (as amended) sets out our powers, it also imposes restrictions on what we can investigate.
5. 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))
6. The Planning Inspectorate (PINs) acts on behalf of the responsible Government minister and its planning inspectors consider appeals about:

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

7. We also 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)
8. We provide a free service but must use public money carefully. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

9. I have:

• considered Mr X’s complaint and supporting papers;
• offered to talk to Mr X about the complaint;
• considered the Council’s responses to Mr X’s complaint;
• considered information on the Council’s website about the development; and
• shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

Background

10. Mr X is a developer. Over five years ago, Mr X applied to the Council for ‘prior approval’ to change the use of part of a building from offices to flats. Such applications concern proposed development that is, in principle, permitted under legal rules. But, councils, as local planning authorities, may need to approve transport and highways impacts and contamination and flood risks.
11. The Council gave conditional approval to Mr X’s application (‘the Permission’). The condition concerned a contamination risk. To meet the condition, the developer had to send, for the Council’s approval, a plan to manage that risk before starting the development. The Council also included ‘informatives’ on the approval. An informative is a ‘note’ to a developer about matters relevant to proposed development that cannot be controlled by the planning permission and its conditions.
12. Around two years later, Mr X completed works to change the use of part of the building. The completed works included changes to the proposed development the Council had approved. Mr X says the changes arose from an informative on the Permission.
13. About six months after completing the works, Mr X asked the Council to agree the ‘as built’ changes made to the approved Permission plans. Mr X also sent information about the contamination risk condition.
14. During the next three months, Mr X and his advisers were in touch with the Council. Mr X’s position was the completed works were lawful. And, it was reasonable for the Council to be pragmatic and accept, in writing, the changes made on site to the proposals it had approved. The Council’s position was the Permission was invalid as Mr X had not complied with the planning condition. The Council also said Mr X needed to apply for full planning permission because it could not, using prior approval laws, retrospectively accept changes he had made to the building. Mr X believed a planning application was not necessary. Mr X was also concerned the Council might take enforcement action against the built development, which could prevent him selling or leasing the building. Mr X says, with the Council refusing to accept the reasonable and substantiated planning arguments made by his advisers, he had no choice but to apply for planning permission for the completed works.
15. Mr X’s advisers applied for planning permission (‘the Application’). The Council had eight weeks to decide the Application. However, planning applicants may agree to extend the time a council has to decide an application. Mr X agreed some time extensions with the Council for deciding the Application. (If applicants do not agree an extension(s), they may appeal to PINs against the council’s deemed refusal of planning permission (see paragraph 6).)
16. After about three months, the Council’s officers “signed off” a report assessing the Application. The report recommended the grant of planning permission on completion of a section 106 agreement. (A section 106 agreement is a legal agreement between councils and developers that links to a planning permission.)
17. Meanwhile, Mr X was in touch with a third party about selling/leasing the building. The sale/lease did not take place and then new planning issues arose with the development. Mr X’s advisers gave the Council more information about the development. The Council took external advice on some of the new information. Council officers then prepared, and later ‘signed off’, another report on the development, again recommending planning permission after completing a section 106 agreement. A section 106 agreement was completed about six weeks later and the Council granted planning permission the following day. It was about sixteen months since the Council had received the completed Application.
18. About seven weeks later, Mr X complained to the Council about what had happened. In response, the Council said it had had explained its position on the changes to the approved development and worked to regularise the situation. It had not threatened enforcement action and Mr X chose to make the Application. It had been in regular contact once it first signed off the Application for approval and was not responsible for the failure to complete the section 106 agreement or withdrawal of the third party. It had continued to work positively with Mr X and his advisers in dealing with the new planning issues and did not accept responsibility for any procedural delay. The Council also said the planning fees and other costs incurred by Mr X were to be expected when making a planning application.

Consideration

Changes to the Permission

19. The evidence shows there is no dispute the built development differed from the approved Permission plans. I have no reason to doubt Mr X changed the approved plans because of the Council’s ‘informative’. That informative referred to Council policies that it could not, under permitted development rules, apply when deciding Mr X’s prior approval application. Mr X says the changes meant the development met the policies in the ‘informative’. The evidence also shows the development was complete when Mr X contacted the Council about changes to the Permission. The Council then did not hold the same view as Mr X and his advisers about how to regularise the ‘as built’ changes or deal with the planning condition about contamination risks.
20. I recognise Mr X’s sense of grievance and frustration with the Council’s position given his stated reasons for changing the approved Permission development. I also recognise Mr X’s stated concern about the Council possibly taking enforcement action if he did not make a new planning application. And yet, the Council’s view did not bind Mr X and it could not compel him to make a new application.
21. The evidence shows the Council engaged with Mr X and his advisers about the as built development. These were reasonable and proportionate steps for the Council to take. Having done this, the Council was entitled to reach its own, differing, view to that held by Mr X and his advisers. I have no role in arbitrating on those differing views and no power to decide whether a development needs planning permission. If the Council had taken enforcement action, Mr X could reasonably have argued his case on appeal before a PINs inspector (see paragraph 6). And, a dispute about the validity of the Permission and or built development would, ultimately, be for the courts to determine, not the Ombudsman.
22. Mr X also knew about the Council’s differing view, and made the Application, more than a year before complaining to the Ombudsman. A complaint about the Council’s handling of Mr X’s correspondence about the Permission, would therefore also be a late complaint (see paragraph 7). Given I could not determine the validity of the Permission and decide whether a new application was necessary, I also cannot see any good reason now to consider a late complaint about the Permission.

The Application

23. Mr X also complains about the 16 months the Council took to decide the Application. I agree that 16 months is a long time. And yet, Mr X agreed to extend the time for the Council to decide the Application. Mr X need not have agreed any time extension with the Council. Indeed, once eight weeks passed without a decision from the Council, Mr X could have appealed to PINs against a deemed refusal of planning permission (see paragraph 6). I find it would have been reasonable for Mr X to use his legal appeal rights if the Council was delaying its decision on the Application. A complaint about the time taken to decide the Application is therefore outside the Ombudsman’s jurisdiction and I find no grounds to further investigate.

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Final decision

24. I discontinued my investigation for the reasons given at paragraphs 21 to 23.

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Investigator's decision on behalf of the Ombudsman