Summary: Mr X complained the Council provided him with wrong planning advice, which cost him more money. Mr X said this distressed him and impacted him financially. There was fault in the way the Council did not record the pre-application advice and communication with the Council was poor. Mr X was frustrated by this and caused uncertainty during the application. The Council should apologise and make a financial payment.

The complaint

1. Mr X complained the Council provided him with wrong planning advice, which cost him more money. Mr X said this distressed him and impacted him financially.

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The Ombudsman’s role and powers

2. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I read Mr X’s complaint and spoke to him about it on the phone.
5. I considered information provided by Mr X and the Council.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

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. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.
10. Not all development needs 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’.
11. Some permitted development proposals need an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.
12. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
13. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
14. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
15. Government statements of planning policy are material considerations.
16. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
17. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
18. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation.
19. Most planning applications should be decided within eight weeks, although the time limit is 13 weeks for major applications. If the planning application has not been decided by the end of this period, and an extension has not been agreed in writing, the applicant can appeal to the Planning Inspectorate (on behalf of the Secretary of State for Communities and Local Government).
20. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
21. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
22. 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.
23. 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.
24. The Town and Country Planning (General Permitted Development) Order 2015 (GPDO) sets out a number of criteria the Council assesses to decide if an application is permitted development.

What happened

25. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
26. Mr X contacted the Council to discuss amending his driveway. He paid a pre-application advice fee and met with the Council in January 2023. Mr X and the Council discussed his plans for the driveway and decided he needed to submit a lawful development certificate application.
27. Mr X put in the lawful development certificate application in February 2023.
28. The Council sent a summary of the pre-application meeting to Mr X in March 2023.
29. The Council completed its delegated report for Mr X’s application in March 2023. The report confirmed Mr X lived on a classified road and the work in the application was not suitable for permitted development. The report also decided the Council could not assess the application fully because of the quality of the drawings sent with the application.
30. Mr X chased the Council for its decision several times. The Council responded at the end of April 2023. The Council confirmed the decision was with management to consider. It did provide an unofficial response and confirmed the Council would not allow the work under permitted development as the house was on a classified road. The response confirmed it could not decide if it would allow the work under the GPDO as the drawings were not accurate.
31. Mr X continued to chase the Council for a full response. Mr X received the response at the start of May 2023 and did not agree with the Council’s decision. The Council advised Mr X it reviewed the application in line with the law. It confirmed the application created wider access to the public highway and he needed to put in a planning application to consider this matter.
32. Mr X put in a planning application in July 2023.
33. Mr X continued to discuss this matter with the Council. He said the Council told him to apply for a lawful development certificate at the pre-application meeting. In August 2023 the Council told Mr X the information provided in the meeting was correct, but the drawings were not accurate and it would not allow widening the access to the front of the property under permitted development. Mr X said the Council told him in the meeting it was acceptable and complained.
34. In the complaint response the Council apologised it missed the fact the property was on a classified road in the pre-application meeting. The Council confirmed it would train its officers and offered to refund the pre-application advice fee. The Council apologised for delays, not responding to communications and that it did not send Mr X a summary of the pre-application meeting until two months later. The response explained why the Council refused Mr X’s lawful development certificate application.
35. Mr X was not happy with the Council's response and asked it to escalate his complaint to stage two. He said he spent money on a planning application and architect’s drawings which he did not need to.
36. The Council considered Mr X’s planning application. It granted planning permission for the work in October 2023.
37. The Council responded to Mr X’s stage two complaint in November 2023. The response apologised for the delays and set out what happened in the pre-application meeting and the works Mr X wanted to do. The Council admitted if it had told Mr X about the classified road, he may not have proceeded. The Council confirmed it refunded the pre-application advice fee and offered Mr X £100 to recognise the poor service.
38. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to reimburse the money he spent and compensate him for his time and trouble.
39. In response to my enquiries the Council stated the pre-application advice was correct. It said the drawings Mr X presented for the lawful development certificate differed from what was discussed and were not detailed enough to fully assess the application. The Council confirmed it had not made any payments to Mr X.

My findings

40. We are not a planning appeal body. This means we do not take a second look at a decision to decide if it was wrong. Our role is to review the process by which planning decisions are made. We look for evidence of fault in the decision-making process. Where we find it, we decide whether it caused a significant injustice to the individual complainant. If we consider the Council followed its processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the Council made.
41. The Council said the application it received differed from what it discussed with Mr X in the pre-application advice meeting. The Council cannot evidence what was discussed in the pre-application meeting so I cannot confirm this. We expect a Council to evidence its actions. This is fault and this caused Mr X uncertainty. The Council has offered to refund the pre-application advice fee. This is a suitable remedy for the fault identified.
42. The planning officer considered the lawful development in accordance with planning legislation. The application confirmed the works would extend the access to the public highway. The planning officer report confirmed the extension onto the public highway was not acceptable and advised the works would need planning permission. The report also confirmed it could not fully assess the work due to the detail of the drawings Mr X presented. There was not fault in the way the Council made its decision to refuse the lawful development certificate. I therefore cannot question whether the decision was right or wrong.
43. The Council accepted the delays responding to correspondence and the poor service was fault. It offered Mr X £100 to remedy this fault. This is in line with the Ombudsman’s guidance on remedies and is a suitable remedy.
44. The Council has identified necessary service improvements as a result of Mr X’s complaint, including training its staff of the importance of recording meetings, responding to communications and updated its policy on pre-application advice meetings.

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Agreed action

45. To remedy the outstanding injustice caused to Mr X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X for not being able to evidence the pre-application advice meeting and poor communications. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mr X the £100 it offered as an acknowledgement of the time and trouble he has spent pursuing this complaint.
• Refund Mr X the pre-application advice fee it offered to refund.
46. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

47. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman