The Ombudsman's final decision:
Summary: The Ombudsman decided it unlikely any investigation would find fault by the Council on Mr H’s complaint about its failure to properly advise him about the need to apply for a certificate of lawful development for a 1-metre-high fence and gate to his property and instead, told him to send a full planning application, which it refused. Discretion to not investigate this complaint further was exercised.
- Mr H complains about the Council’s failure to properly advise him about the need to apply for a certificate of lawful development for a 1-metre-high fence and gate to his property and instead, told him to send a full planning application, which it refused; as a result, he was put to the time and trouble of making an unnecessary application and paid the £206 application fee which it refused to refund.
What I have investigated
- The paragraph at the end of this statement explains why any complaint Mr H had about the planning decision is not within our jurisdiction.
The Ombudsman’s role and powers
- 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)
- 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, or
- it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6), as amended)
- 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))
How I considered this complaint
- I considered all the information Mr H sent, information the Council sent in response to enquiries from our assessment team, as well as the notes I made of my telephone conversation with him.
What I found
- Mr H and his wife wanted to build a 1 metre fence and gate along the boundary to the front of their property to stop footballs going in to their garden from children playing on nearby land. The children caused property damage when retrieving it, stared through their window, and on occasion, pushed rubbish through it if open.
- Mrs H said she spoke to an officer at the Council’s One Stop Shop for advice about whether they needed to apply for planning consent. She claims staff told her they needed to make a full planning application but, if this was later found to be wrong, the officer would decide whether to refund their £206 fee or not. Mr H told me they had evidence of the call but destroyed it when the Council refused the application.
- Mr H could not tell me when Mrs H called the Council, to whom she spoke, for how long she spoke, and nor did they have telephone record showing the call. He confirmed the staff member told his wife they could not give planning advice to her.
- He sent the Council a full planning application for consent to erect the fence and gate. On the application, Mr H said his wife tried to get information by calling the Council but did not get much from it. He added she was advised to make an application and told if it turned out it was not needed, the officer would refund the fee.
- Mr H was very unhappy when the Council refused the application. When he complained, the Council explained he could have applied for a certificate of lawful development to see if the fence and gate could be built under permitted development rights. This type of application is used when a person wants certainty about whether a proposal does not require planning consent. Permitted development rights are granted by Parliament. Provided the proposal falls within certain categories and specifications, no application for planning consent is needed. The Council would only confirm if it was allowed under permitted development rights if he applied for a certificate of lawful development.
- It explained it had no record of any call to the One Stop Shop by Mrs H and its staff are trained not to give advice about whether planning consent is needed or not or if it might be permitted development. Staff are trained to direct enquiries to the planning portal on the Council’s website, which contains planning and building control guidance and documents needed for applications. As they direct callers to the portal, this type of enquiry is not recorded on its systems.
- I intend to exercise discretion not to investigate this complaint further, for the following reasons I explained to Mr H when we spoke:
- The problem is a lack of evidence to support what Mr H says and claimed on the application form.
- There is no record, for example, of the call itself, when it was made, its duration, or to whom Mrs H spoke. There is no evidence of the call in the form of a telephone log/bill.
- The Council has no record of the call, and on balance, I consider it unlikely after more than 12 months, any member of staff who might have spoken to Mrs H would recall speaking to her and if they did, would also recall the contents of the call or if they could, would recall it accurately.
- I am not satisfied the comment on the application form is strong enough evidence on which to base a critical decision against the Council. It is not evidence of: a conversation taking place: the contents of any conversation; an accurate record of what was discussed. In addition, it places the onus on the Council to refute the claim which is not possible given there is no other evidence.
- The Ombudsman exercised discretion to discontinue the investigation of Mr H’s complaint against the Council.
Parts of the complaint that I did not investigate
- Any complaint Mr H may have about the Council’s refusal of his planning application cannot be investigated by us. This is because he had the right to appeal the decision to the Secretary of State. The Planning Inspectorate would then have been asked to decide the appeal.
- The Ombudsman has no jurisdiction to investigate complaints where an applicant has a right to appeal to the Secretary of State.
Investigator's decision on behalf of the Ombudsman