Summary: We will not investigate this complaint about pre-application planning advice the Council gave to the complainant. This is because the law says we cannot investigate when someone has appealed to the Planning inspectorate and there are no other issues we can or should investigate.

The complaint

1. The complainant, who I refer to here as Mr B, has complained about planning advice given by the Council regarding proposed development. He says the Council would not address errors in the advice or deal with his complaint about this.

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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. It 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. When someone has already appealed to a government minister, we cannot investigate and have no discretion in this. The courts have decided this restriction applies even if the appeal could not provide a remedy for all the claimed injustice.
4. The courts have also said that we cannot investigate a complaint about any action by a council concerning a matter which is itself out of our jurisdiction.
5. We investigate complaints about ‘maladministration’ and ‘service failure’ which are within our jurisdiction. 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’.
6. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• the fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement.(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I have considered what Mr B has said in his complaint and information available on the Council’s website. Mr B commented on a draft before I made this decision.

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What I found

8. Mr B sought pre-application planning advice from the Council on a possible development. The Council provided this in June 2020. In summary, it said it would likely refuse an application based on the complainant’s proposals.
9. The Council’s pre-application advice made it clear it was an initial assessment of a proposal and was offered without prejudice to any future application.
10. Mr B complained about factual errors in the pre-application advice and disputed matters of planning principles. He says the Council did not properly assess the proposed development or deal with his complaints about this.
11. Mr B then submitted a planning application to the Council which it refused. He has now appealed to the Minister for Housing, Communities and Local Government through the Planning Inspectorate (PINS). In his appeal submission, Mr B has raised the same issues he has complained about to us.
12. The purpose of pre-application advice is to give some guidance to an applicant without prejudice to the decision on an actual application. It is for the applicant to make the application giving whatever weight they wish to the advice received. I cannot see any alleged fault in pre-application advice could cause injustice that is not directly related to the outcome of the application itself. In this case, the advice that the proposed development would be unlikely to be unacceptable was borne out by the Council’s refusal of Mr B’s application.
13. PINS will consider the planning issues and decide independently whether to uphold the appeal. Even if PINS does not specifically come to a view on the issues in Mr B’s complaint, the restrictions I describe in paragraphs 3 and 4 will apply.

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Final decision

14. I have decided we cannot investigate this complaint because Mr B has appealed to a government minister through PINS against the Council’s decision to refuse his planning application. There is no other issue we can or should consider.

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Investigator's decision on behalf of the Ombudsman