Summary: The Ombudsman will not investigate Mr B’s complaint about the Council’s decision to refuse his planning application in 2009. The complaint is late and I am satisfied there is no good reason to investigate this late complaint now. This is because Mr B had the right to appeal to the Planning Inspector, and it was reasonable for him to use that right.

The complaint

1. Mr B complains the Council wrongly refused his application for planning permission in 2009. Mr B says the Council relied on an Ordnance Survey (OS) map which is inaccurate and should not be used as evidence to boundaries or distances.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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))
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about a decision to refuse planning permission.

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How I considered this complaint

5. I considered information provided by both Mr B and the Council. I shared a draft version of this decision and invited Mr B’s comments.

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What I found

6. Mr B applied for planning permission in January 2009 to sever a garden plot and build a new dwelling as a self-build home.
7. The Council wrote to Mr B in February 2009 within an initial assessment of his application. It said the application was likely to be refused because the proposed site for development was within 400m of a protected area where new residential development was contrary to the heathlands policy. Mr B contacted the Council in response and said OS maps came from aerial photography and could not be relied upon to determine accurate boundaries. In response to a draft of this decision Mr B said his complaint was really about the adopted policy. But any injustice Mr B may have suffered flows from the Council’s decision to refuse his planning application, not from the policy itself.
8. The Council notified Mr B in March 2009 of its refusal of his planning application. There were several reasons for the refusal, including the fact the layout and position of the proposed bungalow appeared cramped. The Council re-iterated its earlier point about the proximity to a protected area. Mr B responded to the notice and said he wanted to make a reasonable effort to address the reasons for refusal before filing an appeal. However, Mr B did not progress with an appeal.
9. Mr B received refusal to his planning application in March 2009, so his complaint is late. Mr B says it would not have reasonable to rule that OS mapping was unfit for purpose at the time of refusal in 2009 because it was relied on at planning appeals from January 2007. However, Mr B questioned the reliance on the OS map in February 2009 and then periodically over the past 10 years. I am therefore satisfied Mr B reasonably knew in 2009 about the issue in his complaint.
10. There are no good reasons for the Ombudsman to consider this late complaint now because it would have been reasonable for Mr B to use his right to appeal to the Planning Inspector. Mr B says issues about policies are not for the Planning Inspector to consider. The question for the Ombudsman is not whether an appeal to the Planning Inspector might have succeeded, but whether it was the appropriate way to challenge the Council’s refusal of planning permission.

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Final decision

11. The Ombudsman will not investigate Mr B’s complaint about the Council’s decision to refuse his planning application in 2009. The complaint is late and I am satisfied there is no good reason to investigate it now. This is because Mr B had the right to appeal to the Planning Inspector, and it was reasonable for him to use that right.

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Investigator's decision on behalf of the Ombudsman