Summary: We have discontinued the investigation into complaints about the Council’s actions on a breach of planning control and related applications to vary and discharge planning conditions. This is because the complainant had rights of appeal to the Planning Inspectorate which he did not exercise but could have done.

The complaint

1. Mr X complained about the actions of the Council over a planning application he made and specifically the discharge of conditions several of the conditions relating to that planning permission.
2. Mr X complained the Council unreasonably refused his application to vary two conditions in 2017.
3. Mr X complained the Council asked him to pay a second time to discharge the conditions, which he considers unreasonable.
4. Mr X said the Council provided unclear and inaccurate information and the whole process has caused him unnecessary time, trouble and expense to try and resolve.

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The Ombudsman’s role and powers

5. The law says we cannot normally investigate a complaint when someone can, or could have appealed 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))
6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

7. I have spoken to Mr X and considered information from him
8. I have considered comments and information provided by the Council in response to enquiries.
9. I have considered the Local Government Act 1974 and the Ombudsman’s Guidance on Jurisdiction.
10. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

11. Mr X made a planning application in 2010 to build a new house on land where there was an existing house and buildings.
12. The Council approved the application with conditions. One of those was that the original house should be demolished within one month of the occupation of the new house, due to the impact on the amenity of neighbouring properties.
13. When Mr X moved into the new house he did not demolish the old house within one month as required.
14. In 2016 the Council received complaints that Mr X had failed to meet the requirements of his planning permission and the old house remained in place.
15. The Council carried out planning enforcement investigations.
16. In 2017 Mr X applied to the Council to vary the condition that set out the timescale for demolition and requested a further 12 months to complete the work. The Council refused the application because of the previous failure to meet the required timescales and the impact of further delay on neighbouring properties.
17. Mr X applied to discharge other conditions from the original 2010 planning permission. The Council refused the application because Mr X had still not demolished the original house and the further conditions were linked to that action, such as landscaping.
18. The Council served a Breach of Condition Notice on Mr X in April 2017 over his failure to demolish the original house. Mr X complied with the Notice and also completed other landscaping works in line with other conditions.
19. Mr X asked the Council to discharge the conditions. The Council sought a fee from Mr X to do this, which Mr X disputed.
20. Mr X complained about these matters to the Council. He remained dissatisfied with its responses and so brought the issues to the Ombudsman.

Analysis

21. The Ombudsman operates under the Local Government Act 1974 (the Act). This places certain restrictions on what we may investigate if there is an alternative remedy available to the complainant.
22. S26(6)(b) of the Act says: “A Local Commissioner [the Ombudsman] shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say-

(b) any action in respect of which the person aggrieved has or had a right of appeal to a Minister of the Crown or the National Assembly for Wales;”

23. The Planning Inspectorate is part of the Ministry for Housing, Communities and Local Government. It hears appeals about decisions on planning applications and formal enforcement actions.
24. Where a complainant has not used the rights of appeal available to them, the Ombudsman has some discretion over whether to investigate their complaint.
25. Mr X had different opportunities to appeal decisions made by the Council in these matters. He had a right of appeal against the Council’s decision to refuse his application to vary conditions in 2017 and to appeal against the Council’s decision to refuse to discharge the conditions. He also had the opportunity to appeal the Council’s decision to issue a Breach of Conditions Notice against him for failure to demolish the original house.
26. Mr X had exercised a right of appeal to the Planning Inspector about a decision on the use of a building in 1998, which had been unsuccessful. I am therefore satisfied he was aware of the route of appeal. The Council included his rights on each of its decisions and the enforcement Notice.
27. Mr X had navigated the planning system himself to apply to build a new house but said he had not been aware of the condition that required him to demolish the original house within one month of occupying the new one. This was clearly stated on the decision notice in 2010.
28. If Mr X had concerns about his ability to meet that deadline, he could have applied to vary that condition at that time or when he was nearing build completion. He did not and instead breached planning controls by failing to demolish the old property within the required timescales. The actions that followed by the Council were a direct consequence of that breach.
29. The Council has a duty, when alleged breaches of planning control are reported to it, to investigate the issues. It then has discretionary powers to take any action it considers proportionate to remove or reduce the public harm caused by that breach.
30. Mr X complained about the charging of fees for further applications.
31. The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 set out when fees are applicable for planning applications and there is no exemption for the discharge of conditions.
32. The Council has explained to Mr X how he can achieve a discharge of conditions now he has completed the necessary work however Mr X disagrees with that way forward.
33. I do not consider there are strong reasons to exercise the Ombudsman’s discretion to continue with my investigation. Mr X had opportunities to appeal the Council’s decisions to the Planning Inspector which could have looked at the reasons for the decisions and any legal disputes about the scope of the demolition required. The Planning Inspectorate was the appropriate body to reach decisions on those issues.

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Final decision

34. I have not exercised the Ombudsman’s discretion to investigate these matters further.
35. Mr X had rights of appeal to the Planning Inspectorate but chose not to exercise them. I consider he was able to use those rights and so I do not consider the Ombudsman should investigate his complaints further.
36. I have therefore discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman