Summary: We will not investigate this complaint about the inclusion of a condition on a planning permission. The complainant is outside our jurisdiction. The complainant had a right of appeal to the Planning Inspectorate, and we have not seen any reason he could not have exercised that right.

The complaint

1. The complainant, I shall call Mr X, says the Council included an unlawful condition on the planning permission granted for a site he owned.

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The Ombudsman’s role and powers

2. 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))
3. 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

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X put in a planning application for a development of houses. The Council consulted Devon County Council which recommended placing a condition on the permission.
7. Despite officer’s doubt about the condition, the Council added it to the approval. Mr X disputed this, and the Council accepted the condition was inappropriate.
8. Mr X made a new application to have the condition removed which was successful.
9. Mr X argues the condition caused him significant financial losses and the Council should compensate him for this.
10. Mr X had a right of appeal to a Planning Inspector against the decision to impose the condition. He says that he decided to withdraw his initial opposition to the condition because on concerns about delay.
11. However, the law provided a remedy for any dispute about the inappropriateness of a planning condition.
12. In R v The Commission for Local Administration ex parte Colin Field (1999) EWHC Admin 754 Mr Justice Keene said:

“I take the point that the statutory appeal to the Secretary of State against a refusal of planning permission provides no compensation for the delay which inevitably occurs. However, the fact is that wherever there is a right of appeal to a minister of the Crown ... there will inevitably be some delay if the right is exercised, as it often will be, and where there is such delay, loss may very well result as it has in the present case. Yet Parliament has chosen expressly to exclude jurisdiction on the part of the Local Government Ombudsman in such cases. It seems to me that in those circumstances Parliament must have contemplated that there would be situations where loss has been suffered and where no remedy for that loss would be provided and yet the Local Government Ombudsman would have no jurisdiction to intervene. I therefore do not find the argument based upon the lack of remedy through the statutory appeal to the Secretary of State persuasive on this particular issue.”

13. I appreciate that Mr X incurred costs which may not have been able to be recovered by the appeal process. However, the law advises the Ombudsman should not investigate a complaint where such a remedy existed, even if that recourse did not provide the full remedy sought.
14. The complaint is therefore out of jurisdiction.

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Final decision

15. We will not investigate Mr X’s complaint because he had a right of appeal, and it is reasonable to expect him to have exercised that right.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman