Summary: We will not investigate Mr X and Mr and Mrs Y’s complaint about the handling of their pre-application advice requests. This is because it is unlikely we would find fault by the Council causing them significant injustice.

The complaint

1. The complainants, Mr X and Mr and Mrs Y, complain about the Council’s pre-application planning advice service. They say the Council did not assist them with their proposal as it should have done and failed to properly advise them. They say this led to them incurring costs to prepare reports and draw up new plans which they believe the Council did not properly consider.

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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..

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

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How I considered this complaint

3. I reviewed Mr X’s complaints to the Council and the Council’s responses. I shared my draft decision with Mr X and invited his comments.

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What I found

4. Mr X and Mr and Mrs Y applied to the Council for pre-application planning advice in 2019 about a scheme to build new dwellings on their land. The Council confirmed there was “in principle… no policy objection to the development of a new dwelling on this site” but highlighted what it referred to as “significant constraints” which required further analysis. It asked for assessments, surveys and plans for the proposed development “in order to provide further feedback on the likelihood of any development being acceptable on the site.”
5. Mr X submitted the further information requested to the Council under its advanced pre-application service but the Council felt the proposal was not acceptable. It offered the applicants the opportunity to obtain further advice “to explore if it would be possible for one dwelling to be sited within the constraints of the site and designed to respect the Conservation area”. But it explained the reports and assessments showed the proposed dwellings “cannot be acceptably accommodated within the spatial constraints of the site and this form and extent of development would harm the character and amenity of the area.” It suggested “The spatial constraints may allow a modest developable area on the level ground clear of trees and outside the area at risk of flooding…” but made clear “the character and appearance of the Conservation Area must be preserved and enhanced. Creating a new access to any new dwelling would require some tree and hedge removal… which may harm the Conservation Area.”
6. After further discussion Mr X and Mr and Mrs Y amended their proposal and applied for pre-application advice for a new scheme comprising of a single new dwelling. The Council considered the information provided but felt the proposal remained unacceptable as it would cause harm to the Conservation Area. Mr X sought a review of the advice but the Council confirmed it was correct. It did however agree to consider any further revisions Mr X wished to make to see if they could overcome its concerns.
7. Mr X’s architect prepared a detailed and comprehensive submission to the Council which Mr X considers covered all outstanding concerns but the Council confirmed it still could not support the proposal. Mr X says the Council’s response did not give the impression the Council fully studied or understood the submission and he was unhappy with the Council’s suggestion that he make a formal planning application if he wished to pursue the proposal further, rather than continuing with the pre-application process. He questions why the Council requested further information at various stages, incurring time and additional expense, only to conclude it is “not possible to provide a new dwelling here in such a way that does not cause at least some harm to the Conservation area.”
8. Pre-application advice is a way to seek a council’s view on a proposal but advice provided at this stage is informal and non-binding. Any costs incurred during the process are done so at risk that the council may not support the proposal and with no guarantee that a formal application would be approved.
9. The Council’s initial advice confirmed in principle there was no policy objection to the proposal to build new dwellings on the land but also set out significant constraints relating to the proposal. It requested further information to provide an accurate and full assessment of the proposal submitted and took this information into account in reaching its view that it was not acceptable.
10. The Council set out its concerns, including about harm to the Conservation Area, and agreed to consider a revised proposal for one dwelling to see if this may overcome the issues, if Mr X and Mr and Mrs Y wished to pursue it. The Council provided sufficient caveats that Mr X and Mr and Mrs Y were at least on notice that it may not support the proposal but they decided to incur the additional expense to alter their plans in an attempt to address the Council’s concerns. We could not therefore say their costs were the direct and unavoidable result of any fault by the Council.
11. Mr X and Mr and Mrs Y do not believe the Council properly considered the additional information about the revised proposal but the Council has confirmed at each stage of the review and complaints procedure that the officer’s view was properly reached. In the event Mr X and Mr and Mrs Y do not accept the Council’s position they should, as recommended by the Council, consider making a formal planning application. This is because whether a proposal is acceptable relies on a high degree of planning judgement and one officer may legitimately view a proposal differently from another. Any decision to refuse a planning application also carries a right of appeal to the Planning Inspectorate, an independent body which will carry out its own review of the proposal and may disagree with, and ultimately overturn, the Council’s decision.

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Final decision

12. We will not investigate this complaint. This is because it is unlikely we would find fault by the Council causing the complainants injustice.

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Investigator's decision on behalf of the Ombudsman