Summary: We will not investigate this complaint about how the Council dealt with a planning application or the pre-application advice it provided to the complainant. This is because we are unlikely to find fault by the Council. The complainant also has the right to appeal to the Planning Inspector.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about the pre-application planning advice he received from the Council. He is also unhappy with how it dealt with his planning application. Mr X says he has incurred unnecessary costs because of the Council’s actions.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

7. Mr X can appeal to the Planning Inspector if he disagrees with the Council’s decision to refuse planning permission. He also could have appealed for non-determination if he was unhappy with how long the Council was taking to decide his application. The Ombudsman will not usually investigate when someone has a right to appeal to the Planning Inspector, even if the appeal would not address all the issues complained about.
8. Mr X has also complained about the pre-application advice he received from the Council and says this contradicts its decision to refuse his planning application. Mr X believes either the planning decision or pre-application advice was wrong.
9. Many councils offer a range of pre-application planning services. Councils should act in good faith when providing pre-application advice. However, pre-application advice does not bind the council and councils cannot be expected to fully assess applications at the pre-application stage. Any planning application submitted will be determined on its own merits. 
10. In this case, I consider it clear the Council’s pre-application advice was given on a without prejudice basis and there was never any guarantee the Council would approve Mr X’s application. Any time and expense Mr X spent preparing the application was at his own risk. The Council has also explained that there were changes to planning policy between the time it provided the pre-application advice and when it determined the application that impacted its decision.

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Final decision

11. We will not investigate Mr X’s complaint because we are unlikely to find fault by the Council in relation to the pre-application advice it provided. I also consider it would be reasonable for Mr X to use his right of appeal to the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman