Summary: The Ombudsman will not investigate Mr and Mrs X’s complaint about inconsistency in the Council’s approach to their pre-application discussion and formal planning application. Their injustice is the result of the Council’s decision not to approve their original plans and if they disputed this it would have been reasonable for them to decline to vary the plans and appeal.

The complaint

1. The complainants, Mr and Mrs X, complain the Council ignored its pre-application advice about their proposal to develop their property. They applied for planning permission but the Council directed them to alter their plans and based its planning permission on the new plans. They say this has caused trouble, inconvenience, upset, distress and financial loss.

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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, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

3. 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))
4. 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

5. I reviewed Mr and Mrs X’s complaint and the Council’s response. I also considered the Council’s online planning casefile. I shared my draft decision with Mr and Mrs X and took account of their comments and further information.

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What I found

6. Mr and Mrs X planned to develop their property and sought pre-application advice from the Council about their proposal. They say the advice confirmed their belief that the proposal would not result in overlooking to their neighbour’s property.
7. Mr and Mrs X applied for planning permission in 2019 but the officer dealing with the case felt the proposal would result in an unacceptable loss of privacy to their neighbour. The officer asked Mr and Mrs X to add a screen but Mr and Mrs X did not like this suggestion and amended the proposal to remove part of the development altogether. The Council then granted planning permission for the amended design.
8. Mr and Mrs X are upset that the Council changed its view about the impact of their proposed development. They do not believe it was necessary to insist on a screen and say that had they known they would have had to alter their proposal they may not have applied at all.
9. The Ombudsman will not investigate this complaint. Pre-application advice is informal and non-binding; it relies on the opinion of the officer providing the advice based on the limited information available at the time. It is a valuable resource for prospective applicants to discuss their plans without making a full planning application but it does not guarantee success.
10. While the officer may have supported the proposal at pre-application stage the application process is more involved and requires more detailed analysis of the impact of a development. In this case Mr and Mrs X’s neighbour objected to their proposal and, on balance, the officer felt it required changes to make it acceptable. This is the cause of the injustice they now claim.
11. If Mr and Mrs X disagreed with the officer’s view they may have declined to make changes to the plans and challenged any refusal to grant planning permission with the Planning Inspectorate. But they decided instead to remove part of the development completely, rather than adding a screen to address possible overlooking, and the Council granted planning permission.
12. Mr and Mrs X are also unhappy with the way the Council has dealt with their complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because Mr and Mrs X’s injustice results from the Council’s decision not to approve their application as submitted and if they disagreed with this it would have been reasonable for them to challenge its view with the Planning Inspectorate. It is also unlikely we would find fault by the Council.

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Investigator's decision on behalf of the Ombudsman