Summary: Mr and Mrs B complained the Council failed to inform them of its interpretation of a restrictive condition on an existing planning permission. This meant they pursued the possibility of converting a building and incurred costs associated with that. Had they known the Council’s position they would not have done so as the proposals were bound to be refused. There was fault by the Council in the information it gave to Mr and Mrs B. It has already apologised and has now agreed to make a payment to them.

The complaint

1. I call the complainants Mr and Mrs B. They complained the Council failed to inform them of its interpretation of a restrictive condition on an existing planning permission. This meant they pursued the possibility of converting a building and incurred costs associated with that. Had they known the Council’s position they would not have done so as the proposals were bound to be refused. They wanted the Council to compensate them for the costs they incurred.

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The Ombudsman’s role and powers

2. 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))
3. 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.

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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I considered the complaint and documents provided by Mr and Mrs B and spoke to them. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr and Mrs B and the Council and considered their comments.

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What I found

The key events

8. Planning law allows people to convert agricultural buildings into homes without the need for full planning permission with certain limits and providing an applicant follows specified procedures. The applicant must go through a prior notification procedure where details are submitted to the local planning authority, in this case the Council. (Town and Country Planning (General Permitted Development) Order 2015 Part 3, Class Q). I refer to this as Class Q.
9. Mr & Mrs B wanted to convert a disused barn into a residential home. The previous owner received planning permission in 2005 for the barn. The permission contained the following condition:

“The building hereby permitted shall be used solely for the accommodation of cattle and/or sheep and/or for the purposes of dry storage in association with the agricultural use of the holding and shall not be used for the accommodation of any other livestock or for any other agricultural or non-agricultural use.”

10. Mr & Mrs B bought the property in 2012. They were aware of the restrictive condition.
11. Having moved their farming activity, the barn became redundant. In 2015 Mr & Mrs B approached the Council about the possibility of converting the barn into a home.
12. The Council made several visits to the site. The initial view was the barn was suitable for conversion under Class Q but there were several issues. The main issue, in the Council’s opinion, was that the barn would have to be developed to such an extent it would amount to a rebuild rather than a conversion. Mr & Mrs B put in two applications for prior approval under Class Q but withdrew them to try to overcome the Council’s concerns over the extent of the work needed to convert the building.
13. They engaged a planning agent who provided detailed reports as evidence in support of their proposal.
14. In 2018, via their agent, Mr & Mrs B put in a third prior approval application to convert the barn. The Council refused the application for two reasons. First, because of two conditions imposed on the 2005 permission including the one detailed in paragraph 9. And second because the work required to convert the building amounted to a rebuild and therefore it did not qualify under Class Q. The report on the application said the Council had previously obtained legal opinion on the relevance of the conditions and that an appeal decision in 2017 confirmed the Council’s position that the building did not benefit from Class Q entitlement.

Our jurisdiction

15. Mr and Mrs B had a right of appeal to the planning inspectorate over the Council’s decision to refuse their application for prior approval. However, any appeal of the refusal of the final prior approval application would not address what is at the heart of this complaint. There could be injustice to Mr and Mrs B from the earlier events where there was no right of appeal and so I therefore considered those matters.

Analysis

16. The crux of the complaint was that Mr and Mrs B considered they were wrongly informed by the Council from the outset that the barn benefitted from Class Q rights. It was not until the refusal on the third prior approval application that the Council introduced the view that the conditions on the original planning permission removed any Class Q rights.
17. In responding to Mr and Mrs B’s complaint the Council accepted they were not informed of this position. But the Council went on to argue that officers had been clear throughout their dealings with Mr and Mrs B that they had serious reservations about whether the building was capable of conversion under Class Q because of the extent and nature of the works needed. The Council noted Mr and Mrs B had incurred substantial expenditure in trying to address the reasons the Council had put forward as to why the building could not be converted under Class Q but this was despite the Council’s advice that it did not consider the building appropriate for conversion under Class Q. This was irrespective of the restrictive condition.
18. There can be no doubt there has been fault by the Council. It expressly said to Mr and Mrs B that the barn benefitted from Class Q rights. It was some two years later that the Council said it did not. The information the Council gave to Mr and Mrs B in response to their first application was wrong. At that point the Council had already refused two very similar applications (on different sites) on the exact same basis: that a restrictive condition removed any permitted development rights and therefore Class Q could not apply.
19. Where there has been fault we must consider how that has affected the complainants and whether they have sustained an injustice as a result of the fault. Here the Council should have been clear in response to the first application that Class Q could not apply. This may have resulted in Mr and Mrs B withdrawing the application. Or they could have proceeded so they could test the Council’s position. I consider the second of these outcomes is the more likely as they have assiduously pursued the possibility of development of the barn.
20. The Council would then have refused the application on the basis that Class Q rights did not apply. Mr and Mrs B would then have had a right of appeal to the planning inspector. It is probable they would have used that right. But as the other two applications I refer to above were both appealed unsuccessfully then I can conclude an appeal by Mr and Mrs B would also have failed. But they would then have known there was no prospect of converting the barn under the Class Q permitted development rights. As it was, because the Council had failed to tell them of its position on this key point, they continued trying to overcome the Council’s concerns about the appropriateness of the building for conversion. They incurred considerable expenditure in so doing; they say their costs over the entire period come to £20,000. They provided me with a breakdown of that figure.
21. We ask a Council to take action to put a complainant back in the position they would have been in had the fault not occurred. I say above what I consider should have happened here, all of which would have put Mr and Mrs B to some costs. However they would then have known that Class Q was not an option. They may have explored other possibilities as they did when in discussions with the Council about this building. That again would have incurred costs. But they would not have incurred costs in trying to overcome the Council’s concerns about this building and its conversation under Class Q as they would have known that was not a possibility.
22. On the balance of probabilities I consider the Council’s failing meant Mr and Mrs B incurred more expenditure than they would otherwise have done. I cannot say precisely what this amounts to but based on the expenditure they have incurred against what I consider should have happened, a fair outcome is for the Council to pay them £10,000.

Agreed action

23. Within one month of this decision the Council will pay Mr and Mrs B £10,000.

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Final decision

24. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman