Summary: The Ombudsman exercised discretion to discontinue the investigation of Mr W’s complaint about the time taken for the Council to decide it would not pursue a second revocation order after it mistakenly issued him with a decision notice granting consent for a residential development. This is because there is no outstanding injustice to him even if there was fault.

The complaint

1. Mr V, a solicitor, complains on behalf of Mr W, about the eighteen months it took the Council to decide it would not make a second revocation order after it had mistakenly issued him with a decision notice granting planning consent for a residential development, instead of refusing it; as a result, he suffered distress and financial loss during this period.

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The Ombudsman’s role and powers

2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
3. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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The Town and Country Planning Act 1990

5. A local planning authority can revoke or modify any planning consent granted when it considers it expedient to do so. (section 97(1), Town and Country Planning Act 1990)
6. When doing so, it must consider the development plan and any other material considerations. (section 97(2), Town and Country Planning Act 1990)
7. Where there is an objection to the making of this order, it shall not take effect unless confirmed by the Secretary of State. (section 98(1), Town and Country Planning Act 1990)
8. The validity of an order can be questioned by way of an application to the High Court on the grounds:

• it was not within the powers of the Act; or
• any relevant requirements have not been complied with; or
• the applicant is aggrieved by any action on the part of the Secretary of State for the same reasons. (section 288 (1), Town and Country Planning Act 1990)

9. The local planning authority is liable to pay compensation where planning consent is revoked. This includes expenditure abortive by the order, such as the preparation of plans for the works proposed, and for any other loss or damage directly attributable to the revocation or modification. Compensation is not payable for works done before the granting of consent. (section 107, Town and Country Planning Act 1990)

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How I considered this complaint

10. I considered all the information Mr V sent, as well as information received from the Council when the complaint was considered by our Assessment Team. I sent a copy of my draft decision to Mr V and the Council. I considered their responses.

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What I found

11. Mr V, a solicitor, represents the complainant, Mr W. In 2017, Mr W applied to the Council for planning consent to build a detached house (the property) on land he owns on which his existing home is located. He planned to get consent to build the property which he would live in once built. He would then sell his existing home.
12. The Council considered the application and decided to refuse it. When it issued the decision notice towards the end of the year, the Council failed to spot it wrongly granted consent instead.
13. While the notice said it granted consent, it contained reasons for a refused decision. The reasons for refusing were because the development: would be at odds with the character of the surrounding area; failed to take account of its relationship to the character, form, and scale of existing buildings nearby; created a built-up effect; caused environmental harm; was contrary to parts of the National Planning Policy Framework and its own Local Plan. It also explained how to appeal the decision to the Secretary of State.
14. In January 2018, Mr W gave the Council notice of his intention to start works on the development. At this point, the Council realised its error. Later the same month, it exercised its power to cancel consent by making a Revocation Order (the Order). This is because once it granted planning consent, even by mistake, the Council could not simply change its decision and withdraw the decision notice to correct the error. The power to cancel consent is subject to paying compensation.
15. The Council met with Mr W and his agent to explain its decision. Officers told him he needed to take legal advice, which he did from Mr V who then wrote to the Council. He challenged the lawfulness of the Order but was willing to negotiate.
16. In February, the Council wrote to Mr V. The Council said it was prepared to ‘negotiate’ and said it was to ‘open discussions’. It offered to: meet on site with the planning officer to look at alternative suitable proposals which might be acceptable in planning terms; accept a planning application from Mr W with no fee; pay Mr W’s reasonable expenses directly as a consequence of resolving the matter amicably, which may include legal and architect’s fees. In return, it wanted Mr W to agree not to implement the scheme it wrongly approved if it gave consent for another scheme or while it dealt with the matter.
17. The Council ended by saying should an amicable solution not be reached or should Mr W fail to give the above assurances, it, ‘reserved its position to make a further revocation order’.
18. There followed correspondence between Mr V and the Council about paying costs, for example. The Council involved its insurers.
19. In June, officers met Mr W to discuss alternative proposals. It later chased him for drawings of them. These were provided in July. In September, the Council said it was happy with them and wanted a planning application submitting. Mr V provided the Council with details of the fees Mr W wanted it to refund. Over the following 2 months, the Council queried his architect’s fees but agreed legal costs.
20. In early 2019, the Council wanted to clear all outstanding planning applications received before adopting its new Local Plan. About 5 months later, the Council agreed to start negotiations about compensation payable to Mr W. Several more months passed, and the Council told Mr V it was waiting for a barrister’s opinion.
21. In August, the Council changed its position and agreed Mr W could implement the consent it granted him by mistake.
22. In October, the Council paid Mr W’s professional fees of over £19,000.
23. In July 2020, the Council received a new planning application from Mr W.
24. The Council does not accept it was entirely responsible for the delay in reaching a settlement. It claims Mr W was partly responsible for not sending drawings in quickly, for example. It also says it changed its position after reaching an agreement with Mr W about fees it would pay.
25. In response to my draft decision, Mr V made the following points:
1. Mr W could object to the Order only when it was submitted to and confirmed by the Secretary of State. The Planning Inspectorate would decide the matter either through written representations or by local inquiry;
2. In February 2018, the Council said it would not rely on the Order and would not send it to the Secretary of State for confirmation;
3. This meant Mr W had no reason to contest it anyway;
4. The Council threatened Mr W with pursuing a second Order which persuaded him to start negotiations;
5. The Council withdrew the threat of getting another Order 18 months later; and
6. When it withdrew the threat, it agreed to him implementing the consent it had wrongly granted. Mr V complains the Council could have done this much earlier. Instead, it wasted much time which cost Mr W a great deal of money, frustration, and stress.
26. Mr W says the Council’s actions caused him significant injustice including:

• Distress;
• He had to withdraw his existing house from the market as he had put it up for sale. As a result, he had to re-mortgage this house. He got a 3-year bridging loan which costs him almost £2,000 a month over 21 months. There is also the cost of buying out of the current fixed interest rate mortgage (£7,000) plus mortgage costs of about £9,000;
• He did not know when he could commission the building of the property or what he would be allowed to build;
• It is likely the build costs have increased from when he could have started development works. He estimates this extra cost to be about £15,000-£19,000 a year; and
• He spent time and money arranging alternative designs for the Council to consider only for it to allow what he had originally proposed.

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Analysis

27. Having reviewed this complaint, I consider this is not a case we should investigate further. This is because even if there had been fault by the Council, I am not satisfied there is a significant injustice outstanding to Mr W. I say this because:
1. While I appreciate Mr V says they are not complaining about the Council’s error in 2017, which is understandable as it goes in Mr W’s favour, I am satisfied the Council’s error in the decision notice cannot be ignored. From this error, all other actions flow.
2. The Council intended to refuse planning consent to Mr W. Through an error on the decision notice, and despite giving reasons on it clearly expressing why it was refusing it, the Council granted consent instead.
3. Had this error not taken place, the consequences for Mr W would have been:

• consent would have been refused;
• which means he would have had no consent to build what he wanted;
• had he wished to build what he wanted, he would have had to appeal the decision to the Secretary of State and the Planning Inspectorate would have decided the appeal;
• there is no guarantee the Planning Inspectorate would have upheld his appeal;
• during any appeal to the Planning Inspectorate, Mr W would have met the costs of experts and legal representation, with no guarantee these would be recoverable from the Council;
• any appeal would have involved, therefore, some distress, time, money, and uncertainty for him;
• the timescale for deciding an appeal might have been similar;
• the problems Mr W faced having to withdraw the sale of his house, bridging loan, remortgaging, and the possibility of increased building costs, would have all been likely present anyway but for the Council’s initial mistake. These are all problems he would have faced had consent been properly refused. These consequences were a gamble Mr W took when he applied for consent, as there was no guarantee it would grant it.
4. The Council met his legal and architect’s costs amounting to £19,000.
5. Had the Council refused to start discussions with Mr W, it could have either proceeded with the first Order or pursued a second one. Either way, Mr W could have objected to it when the Council sent it to the Secretary of State for confirmation.
6. Mr W chose to enter in to discussions with the Council with all the uncertainties this entailed.

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Final decision

28. I exercised discretion to discontinue the investigation of Mr W’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman