Summary: The Ombudsman will not investigate Miss X’s complaint about how the Council dealt with planning applications for a business development. Miss X’s firm had appeal rights to the Planning Inspectorate which it could have used, for the Council’s non‑determination of that application, and its 2016 refusal decision. The firm used its Planning Inspectorate appeals against the Council’s 2018 refusal of a further permission, and against the Council’s formal planning enforcement notice. The Ombudsman has no jurisdiction to investigate those issues because the firm used its appeal rights.

The complaint

1. Miss X is a member of a family firm, represented by Mr Y. The firm has made planning applications for a business development. Miss X and Mr Y complain the Council:
1. failed to give advice from the beginning not to apply for planning permission on the land;
2. delayed in deciding the planning application;
3. made many errors when dealing with the application;
4. is taking enforcement action against the development.
2. Miss X says the matter has caused great stress, inconvenience and financial loss of about £450,000. Miss X wants the Council to work with the firm, provide guidance to get a ‘favourable outcome’, and give them the same help and support as other planning applicants.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. The Planning Inspectorate (PINS) acts on behalf of the responsible government minister. The PINS considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• a planning enforcement notice.

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Miss X;
• viewed relevant online planning documents and maps;
• issued a draft decision, inviting Miss X or Mr Y to reply, and considered Mr Y’s response

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What I found

7. The Council validated the firm’s planning application in 2014. It refused the permission in 2016, by which time the firm had decided to build the development without permission.
8. Miss X and the firm have known about that Council planning decision for over three years, and the delays with that application even earlier. The Ombudsman expects people to complain to him within 12 months of them becoming aware of the matters complained of. So the complaints about that part of the planning process are late.
9. I have considered whether there are any good reasons why the Ombudsman should investigate these late complaints now. I consider there are no grounds for the Ombudsman to do so. This is because the planning matters complained of gave the firm formal rights of appeal to the PlNS. So even if the complaints had been on time, the Ombudsman should not investigate because of those appeal rights. If the firm was dissatisfied with the Council’s delay in deciding the 2014 planning application, they had a right of appeal to the PINS on the basis of non‑determination. Once the Council refused the permission in 2016, that gave the firm a further appeal right to the PINS.
10. I find it would have been reasonable for the firm to have used those appeal rights. The PINS appeal was the formal route, created by national government, by which it could receive the planning outcome it sought.
11. The Council started enforcement action against the development in 2017. Councils may take enforcement action against someone it decides has built a development without planning permission. The person on whom a formal enforcement notice is served has a right of appeal against that notice, again to the PINS. I understand from Mr Y that the firm appealed to the PINS against the enforcement notice. The PINS varied the Council’s notice but upheld it.
12. The Ombudsman cannot investigate any complaint about the Council’s enforcement action because Miss X’s firm used its PINS appeal right. The Ombudsman has no jurisdiction to investigate, and cannot overturn or amend the PINS decision.
13. Mr Y says that once the Council started enforcement action, in 2018 Miss X’s firm submitted a further amended retrospective planning application for the development, reducing it in size. The Council refused the application and the firm appealed to the PINS. The PINS rejected the firm’s appeal in spring 2019.
14. As with the enforcement issue, the Ombudsman cannot investigate any complaint about the Council’s 2018 planning decision because the firm used its PINS appeal right. The Ombudsman has no jurisdiction to investigate, and cannot go behind or change the PINS decision.
15. Miss X says the Council should have warned the firm not to build on the site. She also considers the Council should have been more supportive and given more guidance to her and the family firm. It is not a local planning authority’s role to tell an applicant not to apply for permission. A council’s planning role is to make decisions on applications as submitted to them by applicants. It is also councils’ role to enforce planning rules and regularise planning breaches to protect their areas from unauthorised works and their impacts. They are required to do this whether or not someone objects to a proposed development. So when someone breaches planning rules, this puts that person at odds with councils’ aims and wider public duties. It is not a council’s role in those circumstances to act as an advisor to an applicant in breach. The applicant should protect their position by seeking their own independent legal advice on the matter.
16. Mr Y has provided a 2014 email from a Council officer which he considers indicates the firm’s planning application would receive a ‘favourable outcome’. But an email from a council, no matter how supportive of an application in principle, is not a formal grant of planning permission. It was Miss X’s firm’s decision to build the development without the relevant permission. The firm was entitled to make that decision, but ran the risk of enforcement by the local planning authorities without formal planning permission. In any event for the reasons given in paragraphs 8, 9 and 10 above, the Ombudsman will not investigate this part of the complaint.

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Draft decision

17. The Ombudsman will not investigate this complaint. This is because:
• the complaints about the 2016 planning matter are late and there are no good reasons to investigate them now;
• even if the Ombudsman exercised discretion to consider the 2016 complaint, as the planning applicant, Miss X’s firm had appeal rights to the PINS which it was reasonable for it to have used;
• the Ombudsman has no jurisdiction to investigate the Council’s formal planning enforcement notice, or the Council’s 2018 refusal of the firm’s most recent planning application, because Miss X’s firm used its rights of appeal to the PINS.

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Investigator's decision on behalf of the Ombudsman