Summary: The Ombudsman does not propose to investigate Mr X’s complaint about the Council’s handling of a planning application. This is because it would have been reasonable for Mr X and/or the applicant to appeal.

The complaint

1. The complainant, Mr X, complains the Council took too long to decide a planning application for development on land owned by his late father. As a result the development is no longer exempt from liability from part of the community infrastructure levy (CIL), meaning the estate must pay an additional £170,453.33.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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:

• 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.

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How I considered this complaint

5. I reviewed the information provided by Mr X, shared my draft decision with him and considered his comments.

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What I found

6. Mr X’s father, Mr Y, owned a property in the Council’s area until he died. The property currently falls under the ownership of his estate and Mr X is an executor. His mother, Mrs Y, is the sole beneficiary of Mr Y’s estate and applied for planning permission to develop the property in 2017. She does not currently own the property as ownership has yet to be transferred from the estate. Mrs Y’s agent, Mr Z, handled the application and dealt with queries from the Council about it.
7. Mr Y rented the property to a third party until April 2016. At the point Mrs Y made her application the proposal was apparently exempt from a large proportion of the development’s CIL liability because it had been occupied for at least six months in the last three years. However, the Council took more than two years to decide the application and when it granted planning permission the property no longer met this criteria. This meant the development created a CIL liability of more than £130,000, which Mr X says has now increased to more than £175,000. This is an increase of some £170,000 over the amount he believes would have been owed had the Council dealt with the application more quickly. He believes the Council should compensate Mr Y’s estate for the full amount of its losses.
8. The Ombudsman will not investigate this complaint. The government’s planning guarantee seeks to ensure all planning applications are dealt with within 12 months (including the application process and any appeal). The Council clearly took longer than the government intended to deal with the application but this is not necessarily fault.
9. Where a local planning authority fails to determine an application within the time limit they may appeal to the Planning Inspectorate on the grounds of non-determination (delay). Parliament decided this right of appeal would apply for six months after the deadline for a decision. It also decided to take the period for qualification for the CIL exemption as running from the date of the decision to grant planning permission and not from the date of the application itself.
10. The law says that where a person has a right of appeal to a government minister, or in this case the Planning Inspectorate acting on behalf of a government minister, the Ombudsman cannot investigate their complaint unless it would have been unreasonable to expect the person to appeal. Mr X has explained the reasons he did not appeal but his comments do not provide good reasons to exercise our discretion to investigate his complaint.
11. Mr X was aware the Council had not determined the application within the period set out in law and he had six months to make an appeal on this basis. By not appealing he faced the possibility that the application process would continue without any further right of appeal for the delay and ran the risk that he would no longer qualify for the CIL exemption. He also faced the possibility guidance and policy may change. Unfortunately this is what happened.
12. I acknowledge Mr X’s complaint to the Ombudsman concerns periods of delay which occurred after the deadline for an appeal but this does not mean it would have been unreasonable for him to use his right of appeal when it applied. Had he done so, these later periods could have been avoided and Mr X may not have faced the increased CIL liability he complains about.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because it would have been reasonable for Mr X/Mrs Y to appeal to the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman