Summary: The Ombudsman will not investigate Ms X’s complaint about the Council’s handling of a client’s planning application. This is because an investigation is unlikely to add to that already carried out by the Council and an investigation by the Ombudsman is unlikely to lead to a different outcome.

The complaint

1. The complainant, who I refer to as Ms X, says there was fault by the Council in its handling of a client’s planning application and that as a result she has had to refund part payment of her fees to the client.

Back to top

The Ombudsman’s role and powers

2. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

3. In considering the complaint I reviewed the information provided by Ms X and the Council. I gave Ms X the opportunity to comment on my draft decision and considered what she said.

Back to top

What I found

4. Ms X is a planning consultant. She was hired by a client who submitted a planning application to the Council in June 2019 for a change of use for premises he owns.
5. In July the case officer dealing with the application contacted Ms X to tell her that the application had been called in to the Planning Committee by a councillor and that it would be dealt with in September rather than August due to an already full August agenda. He said he was waiting for a response from the Environmental Health Team regarding a noise impact assessment of the proposed change of use and that if they were happy with the situation he would likely be recommending the application for approval.
6. Before the application went before the Committee, senior planning officers reviewed the application and decided permission should be refused because the proposed use was not appropriate in a largely residential area.
7. Despite Ms X chasing the Council for an update on the application she was not contacted and officers did not inform her of the decision it was going to make.
8. Ms X complained to the Council about its communication failures and also that it had failed to act in accordance with paragraph 38 of the National Planning Policy Framework (NPPF). This paragraph says that planning authorities should approach decisions on proposed development in a positive and creative way and should seek to approve applications for sustainable development where possible.
9. In responding to her complaint, the Council apologised for an officer’s oversight in failing to return her contact and that officers should have emailed her to tell her the application was going to be refused and the reasons for this. The Council told Ms X that the manager had spoken to the officers concerned and made clear what actions were required following a decision to refuse an application.
10. With regard to her concerns about paragraph 38, the Council explained it was under no legal duty to engage with applicants or their agents before making a decision and that it had not sought a time extension for the application because this would not have changed the Council’s view of the proposed use of the land.

Assessment

11. As the Council has already acknowledged, there were failings in its communication with Ms X during its consideration of her client’s application. However, it has apologised for this and were the Ombudsman to investigate the complaint I do not consider it likely we would propose any further remedy or recommend the financial compensation Ms X seeks.
12. I note Ms X’s comment that the decision notice on the application incorrectly refers to the Council having discussed issues with the applicant to try and seek a solution and that this did not happen. However, given the reason for refusal related to the proposed use of the land, there was no viable solution and this is not a matter we would pursue further.
13. In responding to my draft decision, Ms X refers again to the NPPF guidance and says the Council failed to comply with it. However, this is guidance and not mandatory direction. I do not share Ms X’s view that what took place requires further investigation by the Ombudsman.
14. Ms X says her client states he should receive a part refund because the Decision Notice wrongly states the Council spoke to her. Ms X has not made clear what work it was that she charged for which the client now expects a refund for but it is open to her to show her client the Council’s responses acknowledging its errors.

Back to top

Final decision

15. The Ombudsman will not investigate this complaint. This is because an investigation is unlikely to add to that already carried out by the Council and is unlikely to lead to a different outcome.

Back to top

Investigator's decision on behalf of the Ombudsman