Summary: We will not investigate Mr C’s complaint that the Council mishandled and refused two retrospective planning applications he put in for a porch. This is because Mr C put in an appeal to the planning inspector against the first decision. Also, it was reasonable for Mr C to put in an appeal against the Council’s refusal of his second application.

The complaint

1. The complainant, who I will refer to as Mr C, complains about the Council’s handling of two planning applications he put in for a porch he built. Mr C says the porch was only slightly taller than allowed by permitted development rules and he was willing to work with the Council to find a solution. But, Mr C says the Council mishandled his planning applications and wrongly refused to grant planning permission. Mr C says the Council’s actions have caused him a lot of stress and frustration.

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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.
3. The Act 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))
4. 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.

5. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)

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How I considered this complaint

6. I have considered Mr C’s letter of complaint and the supporting information he sent. I have considered planning records available on the Council website. I have also shared a draft version of this statement with Mr C and invited his comments in response.

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What I found

What happened

7. In 2018 Mr C put in a planning application to the Council for a porch at the front of his house. The Council refused the application. Mr C put in an appeal to the planning inspector, who dismissed Mr C’s appeal.
8. Mr C says he spoke to the case officer in January 2020 about the permitted development rules for porches. Permitted development means a grant of planning permission from the local planning authority is not needed. Mr C says the Council previously advised him that the permitted development rules allowed porches to be up to 3.5m in height. Mr C says based on his conversation with the case officer in January 2020 he understood the permitted development height limit to be 3.5m.
9. Mr C built the porch. Mr C considered the dimensions of the porch, including its height of 3.37m, met the permitted development rule for porches.
10. The Council then told Mr C the porch was a breach of planning control and did not meet the permitted development rules. Mr C then found out that the height limit for porches to be permitted development was 3m. Mr C says he took the officer’s advice at face value and did not check the legislation, but in hindsight he should have asked for this advice in writing.
11. Mr C says he was keen to work with the Council to find a solution so he put in a retrospective planning application to the Council for the porch. Mr C says the Council wrongly described the development as a single storey front extension. Mr C did not consider the Council gave proper consideration to this application. In April 2020 the Council refused Mr C’s application.
12. Mr C wrote to the Council about its decision. The Council responded by email on 1 June. In a section headed ‘Moving Forward’ the Council said:
• Mr C had a right of appeal to the planning inspector against the Council’s refusal of his retrospective planning application.
• Alternatively, Mr C is entitled to resubmit a further planning application to the Council to seek to address the reasons for refusal. This could include meaningful discussions with officers about amending the development further to address those reasons.
• In either case, the Council suggested Mr C use the remaining contents of his letter to support such a case in terms of its impact on the locality/streetscene, changes to design, and relevance of development plan policy and national guidance.
• One further alternative is to reduce the development so it meets the permitted development rules.
13. Later that month, Mr C put in an appeal to the planning inspector against the refusal of his planning application. Mr C also put in another planning application for the porch to the Council. This application was the same as the previous application but Mr C included more information to support his view that there were many similar porches in the area.
14. Mr C says the Council was again at fault for the way it considered this application. Mr C says:
• The Council did not upload his supporting statement to the Council website, until he raised this with the Council.
• There were delays by the Council and no site visit took place (Mr C put in an appeal to the planning inspector because of this delay, but later withdrew the appeal).
• The case officer did not check the dimensions of the porch.
15. In early September the Council’s planning committee considered this planning application. By this time the planning inspector had dismissed Mr C’s appeal against the refusal of his earlier retrospective planning application.
16. Mr C says at the committee meeting a Council officer wrongly told the committee that both the width and the height of the porch did not meet the permitted development rules. Mr C says this was wrong - it was only the height of the porch which did not meet permitted development rules. Mr C also says a member of the committee made unnecessary and unprofessional comments that he (Mr C) is a builder and should know the rules.
17. The planning committee voted in favour of refusing planning permission.
18. Later that month a Council officer visited Mr C and measured the floor area of the porch. The officer confirmed that the floor area of the porch was in line with permitted development rules.
19. In November Mr C put in a complaint to the Council about its handling of the matter. The Council’s response included the following comments:
• It accepts the floor area of the porch meets the permitted development rules, but this was not a determinative factor on the need for planning permission or the decisions made by the Council.
• It apologised for wrongly telling the planning committee that the floor area of the porch did not meet the permitted development rules.
20. Mr C has now lowered the height of the porch to meet the permitted development rules. The Council has confirmed that the porch is no longer a breach of planning control.

Assessment

21. Mr C’s complaint is about the Council’s handling of two applications for retrospective planning permission for the porch.
22. Mr C put in an appeal to the planning inspector against the Council’s decision on his first application for retrospective planning permission. Because Mr C used his right of appeal to the planning inspector, we cannot investigate the Council’s handling of this planning application.
23. Mr C also complains about the Council’s handling of his second application for planning permission. Again, Mr C had a right of appeal to the planning inspector against the Council’s decision to refuse this application. If Mr C considered the Council was wrong to refuse this application - particularly that the Council’s error regarding the floor area of the porch affected the Council’s decision - he could have put in an appeal to the planning inspector. I find it was reasonable for Mr C to use this right of appeal. This is because the planning inspector has the power to overturn the Council’s decision.
24. My view is this planning matter became avoidably complicated once Mr C put in a second retrospective application to the Council. Mr C did not make any changes to the development to address the Council’s reasons for refusal. Also, Mr C put in this application at the same time as his appeal to the planning inspector against the earlier refusal by the Council. This meant the Council had to decide a new application for the same development at the same time the planning inspector was considering Mr C’s appeal against the first refusal.
25. Mr C says he put in this application because the Council had suggested he do so. But, the Council’s email to Mr C of 1 June 2020 makes clear that any new planning application would be an alternative to putting in an appeal to the planning inspector. Also, such an application would involve making further amendments to the development to address the Council’s reasons for refusal. So, the Council was not at fault for the advice it gave Mr C after his first application was refused.

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Final decision

26. We will not investigate this complaint. This is because Mr C had a right of appeal to the planning inspector which he has either used, or it was reasonable for him to use.

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Investigator's decision on behalf of the Ombudsman