The Ombudsman's final decision:
Summary: Mr X complains the Council gave him misleading pre-planning application advice about a proposed extension at a community centre. Mr X said this led him to spend money on a full planning application which the Council subsequently said it would refuse. The Council was at fault for accepting Mr X’s pre-planning application without the required information and for failing to keep proper records. It was however Mr X’s choice to proceed with a full planning application. The Council agreed to pay Mr X a total of £357.70 to recognise the frustration, uncertainty and time and trouble caused. It also agreed to explain what service improvements it has carried out to prevent recurrence of the faults.
- Mr X complains on behalf of a charity in his role as treasurer. Mr X complains the Council gave him misleading pre-planning application advice to extend a community centre. He said this encouraged him to proceed with a full planning application that it subsequently refused.
- Mr X says the charity has suffered a financial loss of over £1600 incurred by submitting the full planning application based on the Council’s pre-planning application advice.
The Ombudsman’s role and powers
- 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’. 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)
- 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
- We spoke to Mr X and considered his complaint and information he submitted.
- We considered the Council’s response to Mr X’s complaint.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.
What I found
Pre-planning application advice
- Councils can offer pre-application advice relating to planning and building regulations and there is usually a charge for using this service.
- The Council’s website explains what pre-application advice it gives and what customers can expect from its service. The advice given is dependent on the type of proposed development. The website explains that pre-planning application advice can:
- Identify projects that have little or no realistic chance of getting planning permission.
- Help customers understand what information they would need to make a planning application.
- Help resolve possible issues before the application is submitted to make the process of getting planning permission easier.
- A pre-application request application form completed in full
- A location plan at a scale of 1:1250 or 1:2500 with the site edged red
- Photographs of the site
- Proposed sketches or plans (which do not need to be professionally drawn)
- The required fee.
Planning law and guidance
- Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
- Planning considerations include things like:
- Access to the highway;
- Protection of ecological and heritage assets; and
- The impact on neighbouring amenity.
- Views over another’s land;
- The impact of development on property value; and
- Private rights and interests in land.
- If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
- Mr X is the treasurer for a local charity (the charity). The charity is based in a community centre building of which the Council is the landlord.
- In 2018 Mr X contacted the Council to query whether it would allow development of the community centre. Mr X completed the Council’s online pre-planning application advice form. Records show Mr X asked what development the Council would permit and included various photographs of the community centre. Mr X did not submit drawings or include specific details of any proposal. Mr X paid a fee of £107.70.
- The community centre building is a locally listed heritage asset and therefore in November 2018 the Council consulted with its conservation officer in response to Mr X’s pre-planning application form. The conservation officer noted the building was a former barn and had already been heavily extended. The officer said the size and scale of any proposal was not clear from Mr X’s submission. The officer said any development to the north and south of the existing building would be harmful to the prominence of the building. They said the Council could consider a small, detached annexe but it would need to be a sensitive design in keeping with the main building. They said the size of any proposal was key but could not say anything further based on the limited information they had at the time.
- The Council’s case officer met with Mr X at the community centre in January 2019 to discuss the matter. The Council’s case officer made no notes of what was discussed at the meeting however Mr X did. Mr X said he asked the case officer for suggestions of what development would be appropriate. Mr X says the case officer told him a porch area would be acceptable, although the conservation officer would need to assess any application given the buildings listed status. Mr X said the officer suggested he employ a heritage architect and a planning consultant who would make the application process easier. The case officer did not provide Mr X with any written advice following the meeting.
- Mr X said he followed the advice of the case officer and commisioned a local heritage architect to generate drawings for a proposed porch in July 2019 and submitted them in support of a full planning application.
- In September 2019 the planning officer dealing with Mr X’s application contacted him. They advised that the conservation officer was not in agreement with the proposed plans. The conservation officer provided comments which stated they suggested reducing the size of the porch significantly. They also said the proposal should consider the use of materials to match the existing building in an attempt to reduce harmful impact on the building.
- Mr X considered the conservation officer’s comments and asked the planning officer if the conservation officer would meet with him so he could better understand what would be acceptable in terms of a smaller porch. The planning officer told Mr X they would consult with the conservation officer and provide him with written feedback.
- In mid-October the planning officer wrote back to Mr X. They said the conservation officer had re-assessed the proposal and said the location of the porch was not acceptable. The planning officer suggested Mr X withdraw his application and re-submit it at a later date.
- Mr X wrote back to the planning officer unhappy with the response. Mr X said he had followed the suggestions at the pre-application stage and said it appeared he had wasted money submitting a full application as a result.
- The planning officer wrote again to Mr X. They stated any advice given as part of the pre-application process was an informal opinion and did not constitute a formal decision. The planning officer said they could find no written record of the meeting with Mr X and said the officer who met with him no longer worked for the Council. The planning officer said Mr X’s current proposal did not sufficiently respect the significance of the building. They said a porch may be acceptable in a different part of the building. The planning officer said they were willing to consider amended plans however said in its current form they would recommend refusal and advised Mr X to withdraw his application.
- In November 2019 Mr X withdrew his planning application
- Mr X complained to the Council about its handling of the planning application. Mr X said he had spent £2000 submitting a planning application following the advice of the Council’s planning department. Mr X said he would not have commissioned full plans had the Council’s case officer who met him as part of the pre-application process not said a porch would be acceptable. Mr X also said the planning officer who dealt with his full application had given him incorrect advice to resubmit his application with a small porch. Mr X said had he done so he would have wasted more money as the conservation officer would never have approved it.
- The Council responded to Mr X at stage 1 of its complaint’s procedure in January 2020. The Council said it had no notes to confirm what the case officer told Mr X when they met him as part of the pre-application process. It said Mr X’s pre-application form did not include reference to a porch, so any advice given by the case officer at this stage was informal. The Council said it was unable to conclude that Mr X made an unnecessary application as a result its pre-application advice. The Council said it could not refund Mr X any money. The Council did however offer to re-consider Mr X’s proposal at the pre-application stage free of charge if he wished to send in his proposal along with suitable sketches.
- Records show the Council and Mr X discussed the possibility of meeting again to discuss the viability of developing the building during January 2020. However, they show it was clear the porch was not a viable option and Mr X did not have any further proposals or drawings to put to the Council. Mr X therefore asked the Council to consider his complaint at stage 2 of its complaint’s procedure.
- The Council responded to Mr X at stage 2 in February 2020. The Council found it had no records to show what the case officer told Mr X at the pre-planning application meeting in 2018. It also found that Mr X did not submit the pre-application form with a specific proposal or sketches as required. The Council said it was at fault for failing to keep proper records and for accepting Mr X’s application without the required supporting information.
- With regards to Mr X’s other complaint about the planning officer dealing with the full application giving him incorrect advice to re-submit his proposal the Council found this did not cause him an injustice. This is because the planning officer had advised Mr X about the conservation officer’s comments and told Mr X he should consider withdrawing the application.
- The Council offered to refund the £107.70 Mr X paid for the pre-application advice in recognition of the faults it found. It said however it would not refund any fees Mr X paid in support of his full application. The Council recommended the planning manager ensures sufficient detail is included on pre-application forms and to advise planning officers to keep adequate records following site meetings.
- Mr X remained unhappy and complained to the Ombudsman.
- We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and when we find it, we decide whether it caused an injustice to the complainant.
- Mr X paid for a pre-planning application advice service. The Council’s website is clear about what information it requires in order to give pre-planning application advice. It says it will not accept or consider pre-planning applications without the required information, which includes a location plan and sketches of the proposal. Mr X provided neither of those nor did he provide anything specific about what the proposal was on the application form. Therefore, in line with its website it should not have accepted Mr X’s pre-application form. Doing so was fault.
- Although Mr X took some notes of his meeting with the case officer, I cannot say with any certainty exactly what advice the case officer gave him. The case officer made no record of the meeting. Having accepted Mr X’s pre-application form the Council in line with its procedures should have provided him with written advice. The lack of record keeping and not providing Mr X with written advice was fault.
- However, pre-planning advice is not legally binding and is an informal opinion. Any advice given during this process does not guarantee approval of a full planning application. This is explained on the Council’s website as guidance for applicants. Mr X went to the Council without a specific proposal and wanted ideas about what development may be possible. This is not a pre-planning application question the Council could answer with any degree of certainty. Mr X had no written advice. Regardless of the advice given at the pre-planning application meeting it was Mr X’s choice and risk to commission and pay for an architect to draw the plans for the full planning application.
- When it received Mr X’s full planning application the Council considered it as we would expect. The planning officer told Mr X, after consultation with the conservation officer that the proposal was unlikely to be approved. The records show the planning officer suggested Mr X could submit revised plans for consideration. However, Mr X withdrew his application. Therefore, I cannot speculate on what might have happened had Mr X submitted revised plans for consideration. Mr X suffered no further financial injustice based on these comments from the planning officer.
- Mr X has said he has suffered financial injustice by commissioning an architect based on the pre-planning application meeting. However, I cannot say the faults identified caused that injustice for the reasons explained in paragraph 37. The faults did however cause Mr X frustration, uncertainty and time and trouble in pursuing his complaint
- The Council agreed within one month of the final decision to:
- Refund Mr X the £107.70 fee paid for the pre-planning application advice service and pays him an additional £250 to acknowledge the frustration, uncertainty and time and trouble caused by the Council’s faults.
- Provide us with evidence it has carried out the service improvements recommended in its stage 2 complaint which were to ensure sufficient detail is included on pre-application forms and to advise planning officers to keep adequate records following site meetings.
- I ended my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman