Summary: X complained about the advice the Council gave about whether their proposed works needed planning permission. We did not continue our investigation because it was unlikely to result in a remedy for X or any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the advice the Council gave on their proposed development was wrong, when it said it would be permitted development.
3. X said their project cannot be completed without significantly increased costs, because the Council later decided his proposal was not permitted development.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I read X’s complaint and the Council’s response to the complaint. I considered documents from the Council’s files, including X’s request for planning advice, the advice the Council gave, and its decision on the application for a certificate of lawfulness.
6. I gave the Council and X an opportunity to comment on an earlier draft of this decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
8. However, not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
9. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
10. This may happen where:
• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.
11. Most councils provide pre-application advice, and some councils charge for this service. Individuals may be asked to provide location plans, development plans and other details before advice is provided.

What happened

12. X wanted to carry out improvements to their home, including a raised patio area. They sought advice on whether their proposal was permitted development by completing a questionnaire and sending it to the Council. The permitted development limit for raised platforms is 30cm.
13. In the questionnaire, there was a text box labelled ‘Actual Proposal’. In this, X wrote:

‘We want to confirm this is acceptable as we are raising the height of the present level (Existing level 2) by 280mm (so below planning) but we want to extend the area by 1.8m into Existing level 3 which will make a square patio encompassing the present shed area’.

14. The only other measurement referred to in the text box says this:

‘The present levels the way the garden slopes mean that we are waist/abdomen height to the 6 foot boundary fence. Extending would make this 10-20cm higher relative …’

15. X included some photos and diagrams showing the different parts of their garden. One of the diagrams showed a cross section with two height measurements, both more than 600mm. There are also photos that are marked with present and proposed heights, but not all of these include measurements.
16. The Council responded to the questionnaire to say that, based on the information provided, the proposal would be permitted development because it was 28cm and so lower than the 30cm height limit in regulations. The Council also said:
• the advice was given on an informal basis and without prejudice to the Authority; and
• if X wanted a formal decision, they should apply for a certificate of lawfulness.
17. X did apply for a certificate of lawfulness for their proposal, but the Council refused it. The Council explained this was because the details showed the patio would be raised more than the 30cm permitted limit for raised platforms.
18. X complained about what had happened, and the Council explained its original advice was based on the information provided and was given with appropriate cautions.
19. X said they have lost money and have been left with partially complete work, that would now need a full planning application before the Council could decide whether it is acceptable.

My findings

20. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
21. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
22. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
23. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
24. I should not investigate this complaint further, and my reasons are as follows.
25. The questionnaire X completed could have described increases in height more clearly, as the text box included measurements of 280mm and 10-12cm, but the diagrams and photos indicated increases much higher than this. In these circumstances, the Council might have sought further clarification from X, before responding to the questionnaire.
26. However, the Council did respond and its advice and the basis on which it was provided was clear. It was that planning permission was not required because the patio would be raised by less than 30cm. In these circumstances, I cannot say the advice to X was unclear or misleading. It is clear the Council did not give permission for platforms higher than 30cm.
27. Also, the Council cautioned its advice by saying it was informal and given without prejudice. It then went on to say how a more certain decision could be given. I have understood this to mean that the advice response to the questionnaire should not be relied on.
28. Further to this, the cost to X of incomplete work may not be wasted, as it is possible the Council could approve a planning application for the proposal. Only a planning authority can decide whether development or use of land is acceptable in planning terms.
29. For these reasons, further investigation is unlikely to result in the outcome X wants or any other meaningful outcome.

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Final decision

30. I ended my investigation because it was unlikely to result in the remedy X wants or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman