Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s consideration of his planning application. As a planning applicant, Mr X had a right of appeal to the Planning Inspectorate against the Council’s delay in determining the application. Mr X had a further PINS appeal right once the Council refused the application. The appeal was the appropriate formal route for him to follow to challenge the decision and how it was made, and to seek the permission he wants. It was reasonable for Mr X to have used his Planning Inspectorate appeal rights.

The complaint

1. Mr X works for a development firm. He applied to the Council for planning permission for a residential backfill development. Mr X complains the Council:
1. failed to give him and his firm the appropriate level of service and assistance with the planning application;
2. failed to give him an extension of time to submit amendments to the application before refusing it.
2. Mr X says the matter has caused him severe stress and anxiety. He says the Council’s determination of the application before he could submit amendments means any appeal against the decision cannot take the amendments into account. He considers his firm will have to fund a new planning application.
3. Mr X wants the Council to allow him to submit his amendments and to log them so they can be considered during his appeal.

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The Ombudsman’s role and powers

4. 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))
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;
• conditions placed on 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 Mr X;
• viewed relevant online planning documents and maps;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

7. Mr X had a right of appeal to the PINS against the Council’s delay in dealing with the application. He could have appealed to the PINS on the grounds of the Council’s non-determination of his application. Mr X also had a right of appeal to the PINS against the Council’s decision to refuse his application. The Council’s formal Decision Notice gave Mr X the necessary information for him to use that appeal right. So the Council made him aware of his appeal right and how he could use it.
8. The Ombudsman may decide to investigate a planning applicant’s complaint if he considers it would be unreasonable to expect an applicant to appeal. I do not consider it would have been unreasonable for Mr X to appeal to the PINS because:
• it was the appropriate formal route, provided by national government, for him to appeal against the Council’s failure to determine the application in time, and to challenge the Council’s refusal decision;
• the PINS has the power to overturn the Council’s planning decision and may provide the permission Mr X wants, whereas the Ombudsman does not have that power;
• as a professional developer, Mr X was aware of his PINS appeal rights and how to use them. Evidence of Mr X’s earlier planning applications to the Council show he has previously appealed to the PINS.
9. Mr X says the Council determined the application shortly after his firm had told officers they wanted to delay the decision further, to submit amendments or ‘tweaks’ to the scheme. Mr X says the Council’s fast action at this point in the planning process means any appeal he makes to the PINS could not involve his proposed amendments.
10. The PINS online guidance to applicants states that it will, in exceptional circumstances, consider appeals which amend the original plans as determined by the council. So Mr X could lodge an appeal to the PINS, explaining his specific circumstances, and asking it to consider his case. He could include the amendments he would have made to his application which the Council did not consider. It would then be for the PINS to decide whether to accept his appeal, and what decision to make on his application. The PINS appeal process is able to accommodate Mr X’s circumstances, and may provide the outcome Mr X seeks.
11. I recognise Mr X is complaining about the service the Council provided when considering his planning application, and says he is not complaining about the decision itself. But the Ombudsman cannot separate parts of the process leading to the decision from the decision itself; since the latter is what caused Mr X's complaint and is not something the Ombudsman will investigate, we will not separately investigate the service the Council provided.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because:
• Mr X had a right of appeal to the PINS for the Council’s delay in deciding on his planning application, which it was reasonable for him to use; and
• Mr X could also appeal to the PINS against the Council’s decision to refuse the application.

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Investigator's decision on behalf of the Ombudsman