Summary: We will not investigate Mrs X’s complaint about the planning advice the Council provided. This is because we cannot investigate issues that have been subject to court proceedings and further investigation is unlikely to achieve a different or worthwhile outcome for Mrs X.

The complaint

1. Mrs X complains the Council provided incorrect and misleading planning advice. She says this caused her to start an unnecessary planning permission application. She says this error triggered a chain of events, including a neighbour dispute, a demand for a party wall agreement and court proceedings. This resulted in legal costs, financial loss and distress. Mrs X wants the Council to review its procedures to ensure guidance is accurate, issue an apology, repay her legal, planning and party wall costs.

Back to top

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 could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. 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:

• 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))

Back to top

How I considered this complaint

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

Back to top

My assessment

8. The Council accepted it gave Mrs X incorrect advice when it told her she needed to submit a planning application. It explained the error arose because it initially misinterpreted a historic planning condition affecting permitted development rights. Following a review, the Council established permitted development rights remained in place. The Council said, although Mrs X submitted an unnecessary planning application, the planning permission granted provides formal confirmation her development is lawful. The Council also explained the service improvements it made to reduce the risk of similar errors occurring in future. Given the Council already accepted fault, explained how the error occurred and identified service improvements, further investigation is unlikely to achieve a different or worthwhile outcome for Mrs X.
9. Mrs X complained the incorrect advice led to a dispute with a neighbour, a request for a party wall agreement and court proceedings. The Party Wall etc. Act 1996 creates private rights and obligations between neighbouring property owners. Matters arising under that legislation are separate from the planning process and are too remote from the Council's planning advice to justify further investigation. Furthermore, where matters have been the subject of court proceedings, the law prevents us from investigating them. Therefore, we cannot investigate matters connected to those proceedings, including Mrs X's claimed legal costs.

Back to top

Final decision

10. We will not investigate Mrs X’s complaint because we cannot investigate issues that have been subject to court proceedings and further investigation is unlikely to achieve a different or worthwhile outcome for Mrs X.

Back to top

Investigator's decision on behalf of the Ombudsman