Summary: Mr X complained the Council failed to properly respond to his Purchase Notice, which requested it to buy his land, because it was incapable of beneficial use or development. There was some fault in the way the Council explained its decision, but this made no difference to the outcome because its decision was justified for other reasons.

The complaint

1. Mr X complains the Council failed to properly respond to the Purchase Notice he sent, requiring it to purchase some land he owned. Mr X says the reasons the Council provided for treating the notice as invalid are legally incorrect.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
5. I gave the Council and Mr X an opportunity to comment on an earlier draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Councils may either approve the application (with or without conditions) or refuse it. If an application is refused, the applicant has the right of appeal to a government minister. Appeals are normally considered and decided by the Planning Inspectorate acting on behalf of the minister.
9. Individuals who believe their land has become incapable of reasonably beneficial use or cannot be rendered so by carrying out development for which planning permission was granted, can serve a Purchase Notice (the notice) on the Council. The notice may follow a refusal of planning permission and must be served on the Council within 12 months of the planning decision. The right to serve these notices is found in section 137 of the Town and Country Planning Act 1990.
10. There is government guidance on what a Purchase Notice should include, which says there is no official form required for a purchase notice. A letter addressed to the Council is enough if it:
• states that the relevant conditions in section 137 are fulfilled;
• requires the Council to purchase the interest in land and gives the name of the owner;
• refers to the relevant application and decision;
• identifies accurately the land concerned by reference to a plan;
• provides the name and address of the owner.
11. The guidance goes on to say:
• the letter should, if possible be signed by the owner and state that it is a Purchase Notice;
• once it has received the notice, the Council should consider its validity. An invalid notice should not be sent to the Secretary of State, but instead the Council should inform the applicant that the notice is invalid and that it does not propose to take further action on it.
12. The guidance included a model form for the notice, which could help ensure an application included all the information needed to be valid. At the part of the model form where the land is identified, it says:

‘With reference to land at ……………. shown on the attached plan and subject of planning decision, reference ……. dated ……...’

13. In White v Herefordshire County Council [2007] the Court of Appeal considered the Purchase Notice process. The judges in that case said:
• the Town and Country Planning Act 1990 does not require the submission of a plan with the notice; and
• there is no provision in the act for amending the notice.
14. The court held that Judicial Review was probably an inadequate remedy for a person whose notice was invalid, because by the time the legal process ended, the 12-month period is likely to have expired. It went on to say that such a person had other options, including:
• serving a fresh notice within the 12-month time limit; or
• applying to the Secretary of State for an extension to the 12-month time limit, which the minister is normally prepared to grant where there are good reasons for the delay; but
• even if the time limit extension is refused, the owner can apply for planning permission again, thereby setting a new timetable.

Background

15. Mr X owns a small piece of land, on which sits a wooden double garage. The garage is close behind a building used for residential purposes. Mr X does not own this building.
16. Mr X submitted a planning application to demolish the garage and replace it with a larger and higher garage and workshop. The Council refused the application, because the proposed garage’s increased scale, bulk mass and likely activity from use, would have an unacceptable impact on residents.
17. Mr X did not appeal against the refusal, but instead decided to serve a Purchase Notice on the Council, requiring it to buy the land from him. Mr X sent a letter with his request one week before the 12-month notice time limit expired. The letter described where the land was in general terms, but did not include details of the planning decision, the planning reference or a plan or reference to a plan to identify the land.
18. The Council says its records show Mr X’s letter was received three days after it was dated/posted. Planning officers sought advice from the Council’s solicitor on how to proceed.
19. Nearly two months later, long after the 12-month time limit had expired, the Council’s solicitor wrote to Mr X to say his application was invalid. The solicitor said that to consider the request, ‘the Council would need a further notice together with a plan which accurately identifies the land concerned and also includes the relevant planning application and decision details.’
20. A few days after the Council wrote to him, Mr X responded by returning an amended version of his original letter, keeping the same date. This amended version of the letter included the planning application reference for the refused application and the reference number of the plan which identified the land.
21. A new solicitor took over the case and wrote to Mr X after a delay of nearly two months. The solicitor summarised what had happened so far and set out the dates of correspondence. She then said:

‘… you are not able to amend a Purchase Notice once served, you are only able to serve a further Notice within the 12 months validation period.

The Council still remains of the view that the information you provided in the Purchase Notice does not fulfil the requirements of a Purchase Notice. This is because you did not attach a plan to the Purchase Notice to be referred to in order to accurately identify the Purchase Notice land. This therefore invalidates the notice. An invalid Purchase cannot be sent to the Secretary of State.

For the reasons given above the Council has decided not to take any further action on the Purchase Notice as the Council does not consider this to be a valid Purchase Notice’.

22. Mr X complained to us that the Council had responded to his Purchase Notice late, but had invited him to submit a further notice, together with a site location plan and planning application reference. Mr X said he had sought advice from the Planning Inspectorate. He said the Inspectorate referred him to government guidance, which amongst other things, explains there is no requirement to provide a hard copy of the plan, but merely to refer to it. Mr X said after considering what the Inspectorate had advised him, he thought his amended notice was adequate.
23. Mr X said the Council could either accept his Purchase Notice as valid or indicate a willingness to agree to a development that would be of reasonable, beneficial use.
24. The Council said that in its view, the guidance requires that a plan is provided. It says that details of the location ‘by reference to a plan’ means this should happen and a reference to a plan is not enough.
25. The Council accepts that it did invite Mr X to submit a further notice, but it says that at the time the first solicitor wrote to him to say his original notice was invalid, she did not know the 12-month time period had already expired. It says this was because Mr X did not include details of the relevant planning decision or a planning application reference.

My findings

26. Mr X was entitled to submit a Purchase Notice at any point up until the 12-month time limit expired. He made an application, but the Council was then entitled to decide whether it was valid.
27. The Courts have said that there is no requirement to provide a plan with the notice application. The Council, relying on its interpretation of the government’s guidance, took the position that a copy of a plan identifying the land was necessary to validate a notice application. I do not agree.
28. The guidance only requires a reference to a plan, and providing the details of the refused planning application, should in my view have been enough for the Council to identify the land. This is because national validation requirements include a decision notice and a site location plan, and these are kept on the planning register after the decision is made.
29. Whatever the Council’s interpretation of the guidance, we should note that, while government guidance can help explain what the law is, guidance is not law. There is nothing in the 1990 Act that requires a hard copy plan. In my view, telling Mr X he was obliged to provide an actual copy of the plan was fault.
30. Whenever we find fault, we must determine whether it caused an injustice to the individual complainant. In the context of this complaint, this means we need evidence to show that the fault made a significant difference to the outcome.
31. In its response to his original letter, the Council said that Mr X’s original notice letter was also invalid because it did not include details of the planning application decision, including the application reference.
32. Though there is no statutory form or list of requirements for a valid notice application, the guidance indicates what is necessary. The Act to refers to ‘an application’: it follows that to make its decision, the Council will need to know which:
• planning application decision gives rise to section 137 rights; and
• piece of land it is being asked to purchase.
33. Mr X did not give these details in his original letter. He described the general location of the land, but he did not provide a plan or refer to a plan, and he did not specify the planning decision that gave rise to his rights. Because of this, the Council did not have the information it needed and so was entitled to decide his application was invalid.
34. It therefore follows that because the original letter lacked these details, there is no fault in the fact the Council invited Mr X to make a further application after the 12‑month limit expired. When it did this, we cannot show the Council had the information it needed to know when the time period began or ended.
35. I do not consider it necessary to decide how long the Council should have taken to respond to the original letter, or whether the delay was fault. This is because any reasonable period to respond would certainly have been longer than the limited time available to the Council. The reason Mr X’s application was considered invalid is because he did not provide enough information to the Council. It was not because of any failing on the part of the Council.
36. The Court of Appeal has shown that Mr X is not without a remedy, as when other options fail, the process can be restarted by a fresh planning application. Mr X has already indicated a willingness to change his proposal and he can seek pre-application advice on what sort of development the authority might support. There is a fee for written advice and details of the service are on the Council’s website.
37. I have found fault in part of the Council’s explanation for its decision that Mr X’s Purchase Notice was invalid, but I have seen no evidence that persuades me this made any difference to the outcome. The Council had other reasons that justified its decision.

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Final decision

38. I have completed my investigation because, while there was some fault in the way the Council explained the reasons for its decision, it was still entitled to reach the decision it has.

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Investigator's decision on behalf of the Ombudsman