Summary: There was no fault in the Council refusing to refund Mr X’s planning application fee when it took too long to consider his planning application. The Council has apologised for delays in responding to Mr X’s complaints and offered to pay him £250 to recognise the time and trouble this caused. The Ombudsman cannot continue to investigate the Council’s consideration of Mr X’s planning application as he has a right of appeal to the Planning Inspector.

The complaint

1. Mr X complains the Council delayed reaching a decision on his planning application. He says:
• the Council exceeded the statutory timescales for reaching a decision and should have refunded his application fee.
• a member of the Council’s planning committee carried out an undocumented site visit and met with objectors to the development before voting against the development.
• he cannot appeal the Council’s refusal to grant planning permission as he would have to pay the Community Infrastructure Levy if his appeal was successful. Mr X says they would not have had to pay this if the Council had made its decision sooner.
• The Council allowed members of the public to post inflammatory information about him when making comments on his planning application.
2. Mr X says there were also delays in the Council responding to their complaints.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal 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. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

7. 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

8. I have considered the information Mr X has provided to the Ombudsman. This includes the Council’s responses to his complaint.
9. I have considered information the Council provided in response to my enquiries and information about Mr X’s planning application available on the Council’s website.

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What I found

The law and neighbourhood planning

10. The law says that if a council fails to determine certain planning applications within 26 weeks then the council must refund the application fee. (Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012, SI 2012/2920)
11. The courts have said that no refund is due if a council and an applicant agree to extend the period for considering the application. Once an extension is agreed then no refund of planning fees should be paid. The courts said this was the case even where any subsequent extension was exceeded. (Provectus Remediation v Derbyshire County Council (2018) EWHC 1412 (Admin))

What happened

12. On 16 July 2018 Mr X submitted a planning application for a new house within the grounds of his property. The Council accepted the planning application as being valid on 13 August 2018 after receiving all the relevant paperwork.
13. On 13 February 2019 the Council e-mailed Mr X’s planning consultant to ask for an extension of time to decide the planning application. The Council explained this was because the Council’s planning committee had asked to consider the application. The Council said the extension would be to 28 February 2019 which was the day after the planning committee meeting.
14. Mr X’s planning consultant replied on the same day to agree to the extension of time.
15. On 1 March 2019 the Council adopted the Community Infrastructure Levy (CIL) allowing them to make a charge on any developments granted planning permission from that date. The CIL is intended to help fund infrastructure projects in the area which are needed to support new developments.
16. On 2 April 2019 Mr X complained to the Council as it had still not reached a decision on his planning application. Mr X did not receive a response and so e-mailed the Council again on 29 April 2019. The Council said it would investigate Mr X’s complaint under stage 2 of its complaint’s procedure because of the initial delay in acknowledging his complaint.
17. On 3 April 2019 the Council refused Mr X planning permission for the new house within the grounds of this property.
18. The Council responded to Mr X’s complaint on 21 May 2019. The Council said:
• The planning officer dealing with the application did not keep Mr X’s planning consultant updated “as regularly as she would have liked” between October and December 2018. The Council apologised for this.
• The Council was in regular contact with Mr X’s planning consultant about the progress of the application at other times.
• A councillor from the planning committee carried out an “informal” site visit prior to the planning committee meeting on 27 February 2019. The Council said Mr X could make a complaint to its Monitoring Officer if he believed the councillor had breached the member’s code of conduct.
• The Council said it had no record of Mr X making a complaint about delays in the planning process on 8 January 2019 by telephone.
19. Mr X complained to the Monitoring Officer about the conduct of the councillor on 11 June 2019. The Council acknowledged the complaint but did not contact Mr X to fund out more details until 11 November 2019 after I had made enquiries about his complaint. The Council’s consideration of Mr X’s complaint about the conduct of the local councillor is ongoing.
20. In its response to my enquiries the Council has accepted there were delays in dealing with Mr X’s planning application, responding to his complaint about this and his complaint about the conduct of the councillor. The Council says it has:
• Reminded officers to provide regular updates to planning applicants on the progress of their applications.
• Started a review of ways it can improve timescales for investigating complaints about councillors.
21. The Council says would like to offer Mr X £250 as a “gesture of goodwill” in recognition of his time and trouble pursuing his complaints.
22. The Council has also reviewed comments made on Mr X’s planning application and removed those “could be regarded as inflammatory”.

My findings

23. There is no fault in the Council’s decision not to refund Mr X’s planning application fee. Although the Council did not determine the application within 26 weeks it did ask Mr X’s planning consultant for an extension and the extension was agreed. The extension was agreed only 2 days after the 26 week period had elapsed.
24. The courts have said that once an extension is agreed then no refund of planning fees should be paid. The courts said this was the case even where any subsequent extension was exceeded. (Provectus Remediation v Derbyshire County Council (2018) EWHC 1412 (Admin))
25. I cannot continue to investigate the Council’s decision to refuse planning permission or delays in reaching a decision on Mr X’s application. This is because Mr X had a statutory right to appeal to the Planning Inspector. Mr X was able to employ a planning consultant to assist him with the planning process, so I consider it reasonable to expect him to have appealed if he disagreed with the decision.
26. Mr X says he was unable to appeal as the development is now subject to the CIL and so he cannot afford to build the property if planning permission was granted. However, Mr X could have appealed to the planning inspector if he was unhappy with the time the Council was taking in considering the application. I consider it reasonable to have expected him to appeal if he was unhappy with the Council’s delays.
27. I also cannot continue to investigate Mr X’s complaint about the conduct of the local councillor when determining the planning application. This is because I would have to consider whether the councillor’s actions might have caused Mr X an injustice. This complaint is too closely linked to the Council’s decision regarding Mr X's planning application. Mr X has a right of appeal if he is unhappy with the Council’s decision and as set out above, I consider it reasonable to have expected him to pursue his right of appeal if he wanted to challenge the Council’s decision.
28. The Council has accepted there were delays in responding to Mr X’s complaints about delays in dealing with is planning application and his complaint about the conduct of the local councillor. The Council has said it will pay Mr X £250 to recognise the unnecessary time and trouble Mr X was caused as a result of this. That is a suitable remedy in the circumstances of this complaint.

Agreed action

29. The Council has agreed to pay Mr X £250 to recognise the time and trouble he was caused as a result of its delays responding to his complaints.
30. The Council should confirm within 8 weeks of my final decision that it has paid this money to Mr X.

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Final decision

31. I have completed my investigation as I have found fault causing injustice. The action the Council proposes to take is a suitable way to remedy this.
32. I have discontinued my investigation into the Council’s refusal of Mr X’s planning application and the conduct of a local councillor. This is because Mr X had a right of appeal to the Planning Inspector.

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Investigator's decision on behalf of the Ombudsman