Summary: Mr X complained about the service he received from the Council when seeking advice about his planning permission. Mr X said dealing with the Council was stressful and left him frustrated. The Council had accepted fault in its communication with Mr X and apologised to him. We found the Council’s earlier acceptance of fault and its apologies had already suitably addressed Mr X’s frustration and distress caused by its poor communication.

The complaint

1. Mr X complained about the standard of service he received from the Council in seeking planning advice, including its poor communication. Mr X said the Council was unprofessional and failed to provide support or carry out agreed actions. It also treated two of his planning applications differently and to his disadvantage.
2. Mr X said what happened was stressful and frustrating. Mr X wanted an independent investigation into the Council’s planning service to ensure it acted professionally, correctly, fairly and impartially in the future.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. I gave Mr X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

7. Most development needs planning permission from the local council. Before making a planning application, people may seek advice about their proposed development from the council. There is no legal duty for a council to provide pre application advice. But Government policy and guidance say early engagement can improve the efficiency and effectiveness of the planning application procedure. In practice, most councils offer a pre application advice service and usually charge for that service. Sometimes, people seek advice without using and paying for the council’s formal pre application service. Pre application advice is not binding on councils. But council planning officers should have up-to-date knowledge of planning law, policies, and guidance and give accurate advice based on the information people provide.
8. On deciding a planning application, the council issues a decision notice either granting or refusing planning permission for the development. A grant of planning permission will include conditions to control and regulate the development. A key condition concerns the time the developer has to start the development. If the council fails to include such a condition, the law imposes a three-year time limit on the planning permission.
9. Planning conditions may say a developer must give the council details and or a scheme of works for its approval. For example, a development may include site landscaping. And a condition on the planning permission may say the developer must provide a scheme detailing the trees, shrubs, and any paths on the landscaped area/s. The council does not need to publicise the details or scheme. A planning officer will usually consider the details or scheme and then write to the developer either approving them or suggesting changes. Government planning practice guidance says the council should respond “without delay” and tell the developer of its decision within eight weeks. When the council approves such details or schemes, this ‘discharges’ the relevant planning condition.
10. Some planning conditions say a developer must do something before the development starts. These are ‘pre-commencement conditions’. Development that takes place before a developer complies with a pre-commencement condition may be the subject of enforcement action by the council.
11. Once permission is granted, people sometimes need to change their development proposals. If the changes are ‘fundamental’, people may need to make a new application to the council and complete the planning process again. Some changes may affect conditions on the original planning permission. If so, people may apply for permission to develop without complying with those conditions. (See section 73 of the Town and Country Planning Act 1990, as amended (‘Section 73’).) The council may also consider a change is ‘non-material’. The council does not need to publicise a non-material change and will write to the developer saying whether it agrees that change.
12. The council follows the same underlying procedure when deciding planning applications for both a fundamental change to a development and those made under Section 73. That is, the council must publicise both applications and give people an opportunity to comment before making a decision. Most decisions must be made within eight weeks. If the council approves a Section 73 application, it may apply different conditions to the new planning permission.

Summary of what happened

13. The Council granted Mr X conditional planning permission and, later, approved non-material changes to the permission (‘the Permission’). A condition on the Permission gave Mr X three years to start the development. The Permission also included pre-commencement conditions and one condition (‘the Condition’) required Mr X to submit and get the Council’s approval to a scheme.
14. Following the changes made to the Permission, Mr X considered the Condition unnecessary. About seventeen weeks before the three-year time limit on the Permission, Mr X emailed the Council about his development (‘Email One’). Email One ended saying, “please advise how can we tackle [the Condition] as per the consent letter given our new situation and please can we have this item removed?” Getting no response, Mr X said he then telephoned the Council several times, visited the Council’s offices and sent further emails. During one telephone call about five weeks after Mr X sent Email One, the Council said it told Mr X he needed to make a Section 73 application to remove the Condition. And, following that telephone call, at Mr X’s request, the Council’s duty officer emailed the planning case officer that had dealt with the Permission. The duty officer’s email asked the planning case officer to contact Mr X.
15. About a week later, Mr X received an email from the Council’s planning team (Email Two - 18/6/24). Email Two said planning officers could not just waive the Condition and Mr X should consider applying to remove it. Alternatively, Mr X might contact another Council department (‘the Scheme Team’) to see if they ‘might be able’ to use their discretion. Email Two also reminded Mr X that he still needed to comply with the other pre-commencement conditions on the Permission.
16. Mr X replied immediately confirming he was dealing with the other pre-commencement conditions and asking how to apply to remove the Condition. The Council replied confirming Mr X needed to make a planning application asking to remove the Condition. The Council again suggested Mr X contact the Scheme Team to see if they could use their discretion.
17. About a week later Mr X emailed the Council’s planning team asking how he could move forward as he could not get a response from the Scheme Team. Over the following week, officers in the Council’s planning department sent three emails to the Scheme Team asking that it contact Mr X. Just under three weeks after Mr X first contacted the Scheme Team, they replied telling him they could not remove the Condition from the Permission. The Scheme Team also set out what information Mr X now needed to provide to discharge the Condition given the changes made to the development.
18. Mr X continued to contact the Scheme Team and Council planning officers saying the Condition was unnecessary and asking how to remove it. A Council planning officer replied confirming Mr X had to make a formal application asking to remove the Condition from the Permission. Mr X questioned the response saying the Council had told him it had discretion to remove the Condition.
19. Mr X also complained to the Council. Mr X said the Council had delayed and failed to respond to many of his contacts and had then given him misleading and conflicting advice about removing the Condition. (Eight weeks remained before the three-year time limit on the Permission expired.)
20. The Council responded to the complaint about ten days later. It apologised for the unsatisfactory service Mr X had received in contacting it about the Condition. The Council also apologised for its planning officers not returning his calls and the delayed response from the Scheme Team, which was caused by staff absences. The Council said it would remind its planning officers to keep their mobile phones charged and switched on. It would also remind them to respond to messages within an appropriate timescale if they could not immediately answer a call. The Council also said it would arrange added administrative support for the Scheme Team to help with correspondence. On dealing with the Condition, the Council said Mr X had a choice. He could make a full planning application for the development he now wanted to carry out and the resulting planning permission would come with a new three-year time limit. Or, he could make a Section 73 application to change or remove the Condition from the Permission.
21. Over the following week, Mr X was in touch with the Council about both discharging pre-commencement conditions on the Permission and making a Section 73 application for the Condition. Mr X also asked the Council to escalate his complaint, as he found its first response inadequate. The Council said it would respond to Mr X’s further complaint within the next four weeks.
22. About a week later, the Council received a Section 73 application from Mr X to remove the Condition from the Permission (‘the Application’). The Council also received an application to discharge other pre-commencement conditions. Five weeks remained before the three-year time limit on the Permission expired.
23. A few days later, Mr X contacted the Council saying the Council had eight weeks to decide his applications but the Permission would expire in six weeks. Mr X said the Council’s Fast Track team wanted £1,600 to process the applications quickly. Mr X asked the Council to waive the fast-track fee as he was only short of time because of the Council’s inaction over the previous three months. The Council replied the same day (‘Email Three’) saying waiving the fee was not justified but it would review the matter in dealing with his complaint. Email Three also confirmed that, without payment of the fee for the fast-track service, the Council’s main planning service would process Mr X’s planning applications in the usual way. Email Three also said the Council could decide his application to discharge pre-commencement conditions even if the Permission time limit expired. Mr X wrote to the Council saying he had received at least three contradictory responses about the pre-commencement conditions. And there was no need for him to pay for a fast-track service if the Council could decide his applications after the Permission expired.
24. The Council registered the Application and then publicised it, giving people the necessary minimum 21 days to comment. The date for receiving comments was later than the three-year time limit on the Permission.
25. The Council replied to Mr X’s further complaint within its four-week timescale. In summary, the Council said the Condition needed either to be discharged or varied/removed under a Section 73 application. And it was wrong for any of its officers to have suggested the Council had discretion to waive or set aside any planning condition. The Council apologised for misadvising Mr X. The Council also gave a further apology for its poor communication, including not dealing promptly with all his telephone calls. While recognising there had been delays, the Council said it had not ignored Mr X or acted unprofessionally.
26. The Council wrote to Mr X discharging the pre-commencement conditions on the day the Permission expired.
27. About a month later, the Council asked Mr X if he had implemented the Permission. Mr X said he had not implemented the Permission. The Council then told Mr X it could not change a condition on a time expired planning permission. The Council asked Mr X if he wanted to withdraw his Section 73 application. Mr X referred to Email Three and said he had been told the Council could decide his application after the Permission expired. And that was the reason he had not used the Council’s fast-track service. The Council said Email Three clearly referred to Mr X’s application to discharge pre-commencement conditions, which it had decided. In response, Mr X said the Council had delayed for three months when he sought help and advice. So, it had either misled him by advising it could decide his applications after the Permission expired or was now acting in bad faith.
28. Mr X did not withdraw the Application. The Council refused the Application saying the Permission had expired without being implemented and the law did not allow it to change a permission that did not exist.

Summary of the Council’s response to the complaint

29. The Council said it had accepted failures in its communication with Mr X and had apologised to him. The officer sent Email One had been on leave and Mr X would have received an immediate automated reply signposting him to other sources for help. The Council said Email One did not say Mr X wanted to implement the Permission without complying with the Condition. Its records showed Mr X first asked about removing the Condition when he spoke to a duty planning officer about a month later (see paragraph 14). The duty officer had then told Mr X he needed to make a Section 73 application, which advice other officers later also gave him.
30. In referring Mr X to the Scheme Team, its intention had been to help Mr X as its planning officers would have liaised with them in dealing with the Condition. The Council emphasised it had not told Mr X the Scheme Team had discretion to remove the Condition but they ‘might’ have discretion. The Council said, before referring to the Scheme Team, it had already told Mr X a Section 73 application was needed to remove the Condition. And, the Scheme Team later told Mr X they did not have discretion to remove the Condition.
31. The Council said it had twice issued reminders to officers about returning voicemails and the Scheme Team had tried to recruit more support staff. It had also trained staff to increase capacity for responding to residents’ contacts. However, unlike most London Borough councils, it offered a free duty officer advice service. And the volume of calls received by its Customer Service Team and for its planning duty officer service meant meeting demand efficiently and effectively remained challenging. Its call abandonment rate exceeded the 12% industry standard, being 13.4% in 2023/2024 and 15.5% in 2024/2025. Mr X had accessed both the free planning duty service and had direct contact with planning officers and the Scheme Team.

Consideration

Introduction

32. The Ombudsman is not an appeal body and our role is not to ask whether a council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot question whether the decision was right or wrong, regardless of how strongly a complainant may disagree with the decision.
33. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what a council did.

Planning advice

34. Mr X wanted to implement the Permission without complying with the Condition. And Section 73 allows developers to apply to their council to remove conditions from their planning permissions. I found Email One clearly asked the Council how the Condition could be removed from the Permission (see paragraph 14). Email One was sent about 17 weeks before the Permission expiry date. The Council should determine Section 73 applications within eight weeks. A quick and clear response to Email One telling Mr X to make a Section 73 application should have given him enough time to make a valid application and get a decision from the Council. However, this did not happen.
35. Email One was sent to a Council officer then absent from the office. The Council provided evidence of the automated reply set up by that officer on their email account, which signposted senders to where they could find help. Setting up an ‘out of office’ email response and telling people where they could go for help was a suitable and appropriate step to take. And Mr X went on to telephone the Council and use the duty planning officer service. While I recognised Mr X found the lack of a direct and specific response to Email One frustrating, I did not find fault here by the Council.
36. I recognised Mr X’s dissatisfaction with his following contacts with the Council, particularly its handling of his telephone calls. However, demands on customer call services will vary and people may be put ‘on hold’ and or face significant ‘wait’ times as they move up a call queue. I also recognised the Council might face increased pressures as it offered a free duty planning officer service. The Council recognised the need to improve its customer call services and had, and was, acting to do so. I was satisfied on the evidence provided by the Council that its call service, while exceeding industry standards for abandoned calls, had not fallen below acceptable administrative standards. I also found the Council’s apologies had suitably addressed any frustration to Mr X caused by any failures or delays in returning his calls after he sent Email One (see paragraphs 20 and 25).
37. However, the evidence showed that about a month after sending Email One, the Council, during a telephone call, told Mr X he needed to make a Section 73 application to remove the Condition. At this point, more than eight weeks remained before the Permission expiry date. So, again, this should have given Mr X enough time to make a valid Section 73 application and get a decision from the Council.
38. The Council’s evidence showed, having spoken to a duty planning officer, Mr X wanted to speak to the planning officer that had dealt with the Permission. And, about a week after the duty planning officer told Mr X he needed to make a Section 73 application, the planning case officer sent Email Two. Email Two again told Mr X about making a Section 73 application. Email Two also gave Mr X an ‘alternative’. I had no reason to doubt that, in raising the alternative, the Council’s intention was to ‘help’ Mr X. However, in pursuing the alternative, it took nearly three weeks before the Scheme Team confirmed they had no discretion to deal with the Condition. I recognised Mr X sought a speedy response to his enquiry. However, I did not find the time the Scheme Team took to respond fell below acceptable administrative standards.
39. I also carefully considered what the Council said about Email Two’s use of the word ‘may’ in referring to the Scheme Team’s discretion. However, I found Email Two read as the Scheme Team ‘having’ discretion and the issue was whether they would use it. However, the lawful way to remove the Condition, which was what Mr X wanted to do, was to make a Section 73 application. I therefore found the Council at fault in suggesting there was an ‘alternative’ way to remove the Condition. I recognised the Council had already accepted it had been wrong to suggest to Mr X there was an alternative to making a Section 73 application (see paragraph 25).
40. It took nearly three weeks before the Council effectively closed down this alternative (see paragraphs 15 to 17). During this time Mr X would likely have experienced further frustration. However, when the Scheme Team told Mr X they had no discretion to deal with the Condition, there were nine weeks left until the Permission expiry date. So, it remained possible for a valid Section 73 application to be made and determined. I therefore found the apology already given by the Council had suitably addressed Mr X’s likely frustration caused by the Council’s wrong advice (see paragraph 25).
41. Over the following few weeks, Mr X asked questions about making applications to remove the Condition and discharge other pre-commencement conditions. The evidence showed the Council responded promptly to Mr X’s questions. However, when Mr X submitted his applications and the Council later accepted them as properly made, there were less than eight weeks until the Permission expiry date. The evidence showed Mr X was aware of this (see paragraphs 22 and 23). Mr X therefore considered using the Council’s ‘fast track’ service. The Council confirmed that use of the fast-track service at this point would have meant it could decide Mr X’s applications before the Permission expired. However, Mr X did not pursue the fast track having received Email Three (see paragraph 23). Relying on Email Three, Mr X was upset when the Council later refused the Application.
42. Mr X believed the Council had either misled him in writing Email Three or acted in bad faith in refusing the Application. Email Three said Mr X’s application to discharge pre-commencement conditions on the Permission could be determined after the Permission expiry date. But, it did not say the Application could be determined after expiry of the Permission. I recognised Mr X, before getting the Permission, had no knowledge of planning procedures. But, I was satisfied Email Three did not need specialist planning knowledge. I therefore found no fault by the Council in its wording of Email Three or its later refusal of the Application.

Summary

43. The evidence showed the Council told Mr X about making a section 73 application during a telephone call about five weeks after he first contacted it about the Condition. About a week later, the Officer provided this information in writing. However, the Officer gave Mr X an alternative way forward: contacting the Scheme Team to see if it would use discretion to remove the Condition. I found fault here as the Council did not have ‘discretion’ to remove planning conditions. Rather Section 73 provided a specific legal procedure for removing or varying planning conditions. The Council told Mr X about Section 73 and, when it did so, sufficient time remained for Mr X to use that procedure to remove the Condition.
44. Despite wrongly suggesting there was an alternative to Section 73, enough time to use that procedure remained after that alternative was ruled out. The Council’s apologies for both the communication issues Mr X encountered and for suggesting he might avoid a Section 73 application suitably addressed the injustice caused by these faults. The Council was not at fault when, unfortunately, Mr X misread Email Three and decided not to use the Council’s fast track service, which was later followed by the Council’s decision to refuse the Application.

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Decision

45. I found fault causing injustice (see paragraphs 36, 39 and 40), which the Council had already proportionately, reasonably and appropriately put right by apologising to Mr X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman