Summary: Mrs B complains about the Council’s pre-planning application advice that was inconsistent with the comments it made about her subsequent planning application. The Ombudsman has found no fault.

The complaint

1. The complainant, whom I refer to as Mrs B, says the pre-planning application advice provided by Council officers was inconsistent with the comments those officers then made on the planning application she later submitted.
2. She says she incurred considerable costs developing plans that were then deemed unsuitable.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I have considered:
• Mrs B’s complaint to the Ombudsman;
• The complaint correspondence between Mrs B and the Council;
• The Council’s response to the Ombudsman’s enquiries.
6. I sent a draft decision to both parties to comment upon. I have considered the detailed representations made by Mrs B before reaching my final decision.

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What I found

7. In July and December 2016, Mrs B’s planning agent and architect had two pre-planning application meetings with conservation and tree officers from the Council. This was informal, free advice. It was not provided under Council’s Pre-Application Planning Service. Mrs B was keen to work with the Council at an early stage in her development because a number of previous applications on the site had been unsuccessful.
8. Mrs B says the officers suggested a contemporary dwelling design might be acceptable on the site. This formed the basis of her application that she submitted in February 2018. She incurred considerable costs making this application in both architect and design fees.
9. Upon receipt of the application, the Council consulted with interested parties, including its conservation and tree officers. Both objected to the application. The conservation officer said concerns remained over, “scale, design, finishes and building positioning”. The tree officer said his previous concerns had not been addressed.
10. The case officer advised Mrs B she could not support the application. She referred to, "the emerging conflict between the requirements for a more traditional build from a conservation viewpoint versus a modern build method to limit the impact of the trees will need to be carefully considered”.
11. Having been informed of these objections, Mrs B withdrew her application.
12. Mrs B feels she has wasted time and money employing an architect to pursue a modern design that she was led to believe the Council would support.
13. She complained firstly to the Council and then to the Ombudsman.
14. In response to the complaint and Ombudsman’s enquiries, the Council said:

• There are no records from the two pre application meetings in 2016.
• The advice (in 2016) was that a contemporary design was likely to be the best way forward “and most likely to successfully respond to the site constraints”. At no time did an officer dictate that a contemporary design was the only solution for development of this site or indicate that only a traditional design would be acceptable.
• A planning officer did not attend these meetings, to provide and all round view of the application. Even if one had attended and given a positive indication, this would not have been binding in the Council in any event.
• Each officer at these meetings was giving advice about their own area of expertise only. Changes to one element of the application could have implications on another. This proved to be the case.
• The application failed to address concerns about the impact on trees.
• Mrs B’s agent should have made the limitations of any pre-application advice clear to her, particularly in light of the site’s problematic planning history.

15. In 2019, Mrs B submitted a revised planning application. This was rejected. She has recently lodged an appeal with the Planning Inspectorate.

Analysis

16. Pre application advice is informal and non-binding. It does not amount to a guarantee that any application will be approved.
17. It is both unfortunate and disappointing that no notes were taken by Council officers from the meetings that took place in 2016. Generally, the Ombudsman takes the view is that any action (beyond the trivial) demands a record. Nor are there are any independent witnesses to the meetings. The Council may wish to address this with the relevant officers to avoid problems in the future.
18. But I do not consider this poor record keeping to be of particular significance to the complaint before me. This is because the Council does not disagree that it gave advice about the design. In its complaint response to Mrs B, the Council accepted that in July 2016 the view expressed was that a contemporary design “was likely to be the best way forward”. Understandably, Mrs B acted on this. But this initial view about design did not mean that a modern design would be successful, particularly as there were so many other variables involved with the site.
19. The only contemporaneous records available to me are the emails from Mrs B’s planning agent to Mrs B informing her of the outcome of the July and December 2016 meetings. These include phrases such as, “”she (the conservation officer) liked [a contemporary building nearby] and felt that something similar would work on the site” and “she (the conservation officer) was very pleased with the work carried out and supportive of the proposals going forward…she agreed this was a good starting point and liked the initial designs”.
20. In my view, these statements do not provide a guarantee that a modern design would be successful as Mrs B claims.
21. The only Council record of any meaningful evidential value is the consultation response from the conservation officer in which she explained why she was unable to support the application.
22. She referred to the pre application discussions within this report. She said, “the constraints to development on site were clearly reiterated. The agent and architects advised that a more contemporary design was being developed”.
23. There is no evidence that any officer said that a contemporary design was the only way to overcome the issues presented by the site.
24. Nor is it contested that the Council advised Mrs B that an architect led design was the best way of getting a design approved. Mrs B says she relied on this advice when employing the architect.
25. This was advice the Council gave in good faith, taking into consideration the history of the site. It was up to Mrs B whether she chose to act on this advice. The Council cannot be held responsible for the costs of her employing an architect designing a scheme that was not approved.
26. For these reasons I do not find fault in respect of this complaint and have therefore ended my investigation.

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Final decision

27. I have found no fault in the way the Council gave pre-application planning advice to Mrs B.

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Investigator's decision on behalf of the Ombudsman