Summary: We will not investigate Miss X’s complaint about the Council’s advice regarding her planning application. This is because there is not enough evidence of fault by the Council.

The complaint

1. The complainant, Miss X, complains the Council wrongly advised her she needed a legal agreement before it would grant her planning permission. She paid £1,500 to cover the Council’s costs for the legal agreement but the Council approved the application without it.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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 considered information provided by Miss X, the planning application details and the Ombudsman’s Assessment Code.

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Background

6. Miss X applied for planning permission to develop her property in 2022. The Council considered the application but felt the proposal was not acceptable without guarantees over future development of the site. It therefore proposed a written legal agreement under S106 of the Town and Country Planning Act 1990 (a “S106 agreement”) to address its concerns.
7. Miss X says the Council told her the S106 agreement was the only way to get planning permission so she agreed to cover the Council’s costs of preparing the agreement, which were estimated at £1,500. The Council’s legal team prepared the agreement and provided a copy to Miss X to sign, after taking her own legal advice.
8. Miss X referred the matter instead to a planning consultant who she says advised she did not need the S106 agreement. She says the consultant did not change anything from her original application but the Council granted planning permission anyway. She therefore believes the Council should refund her money.

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My assessment

9. Although Miss X says she made no changes to her proposal to obtain planning permission the documents available as part of the casefile show changes were made. The planning officer’s report explains these changes and the reasons why they meant the S106 agreement was no longer needed. This does not show fault by the Council in its initial advice. We cannot expect councils to consider every possibility and to advise of every option to overcome issues with a planning application. There is no evidence to show its advice that a S106 agreement would make the proposal acceptable, was flawed.
10. It is clear Miss X wished to proceed with the development and that she felt the benefit of the planning permission outweighed the Council’s costs in preparing the agreement. It was her choice to proceed with this and it has only become unnecessary as a result of the changes made by her planning consultant. If Miss X had not made the changes and instead signed the agreement it is likely the Council would have approved the application as discussed; Miss X’s costs only now appear wasted as she has taken a different approach.
11. We could only say Miss X incurred the costs for the S106 agreement unnecessarily if the proposal was in fact acceptable without the agreement or the changes, which were not proposed at the time of the Council’s advice. This is not a conclusion we can reach. Had Miss X felt this was the case she could have declined the Council’s advice to go ahead with the S106 agreement and appealed against any refusal to grant planning permission.

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Final decision

12. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman