Summary: We will not investigate this complaint about the Council’s pre-application planning advice or its decision to refuse planning permission. This is because the complainants had the right to appeal to the Planning Inspector. It is also unlikely we could add to the Council’s response.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X, have complained about the pre-application advice they received from the Council. They say the advice was incorrect and they incurred unnecessary costs as a result.

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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:

• we could not add to any previous investigation by the council, or
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

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

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My assessment

7. Mr and Mrs X could have appealed to the Planning Inspector if they were unhappy with the Council’s decision to refuse their planning application. I consider it would have been reasonable for Mr and Mrs X to have used their right to appeal. The Ombudsman will not usually investigate when someone had a right to appeal to the Planning Inspector, even if the appeal would not address all the issues complained about.
8. Mr and Mrs X say the Council incorrectly told them the development would be acceptable and they incurred costs making an application on this basis. The Council has accepted an error was made in the pre-application advice. It has apologised and refunded the fee. I consider this a suitable remedy in the circumstances. Mr and Mrs X say the Council should compensate them for all the costs they incurred submitting the application as they would not have applied for planning permission had they not been incorrectly told the development was acceptable. But pre-application advice does not bind councils. There was no guarantee that planning permission would be granted, and any application must be considered on its merits.

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Final decision

9. We will not investigate Mr and Mrs X’s complaint because they had the right to appeal to the Planning Inspector. It is also unlikely an investigation by the Ombudsman would add to the Council’s response.

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Investigator's decision on behalf of the Ombudsman