Summary: We will not investigate Mr B’s complaint that the Council gave him misleading pre-application planning advice. This is because it was reasonable for Mr B to appeal to the planning inspector when the Council later said it would refuse his planning application.

The complaint

1. The complainant, who I will refer to as Mr B, put in a planning application based on pre-application planning advice provided by the Council. Mr B complains the Council went against the pre-application advice and told him it would refuse the application. Mr B complains the Council’s advice was flawed and misleading. Mr B would like the Council to issue a full refund for the planning application fee he paid.

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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.

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How I considered this complaint

5. I have considered Mr B’s complaint form, the pre-planning advice he complains about, the Council’s responses to his complaint, and, Mr B’s comments to me. I have also shared a draft version of this statement with Mr B and have considered his comments in response.

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What I found

What happened

6. Mr B paid the Council for pre-application planning advice for changes he wanted to make to his property. Mr B wanted to build a new building to replace an existing agricultural building which is connected to a barn. Mr B says the Council’s written advice gave the impression the new building could be connected to the existing barn.
7. Mr B then put in a planning application to the Council for the proposed development. Mr B paid the application fee of £462. Mr B’s plans showed the proposed new building connected to the existing barn. The Council then told Mr B this was not acceptable and there needed to be a gap between the new building and the existing barn.
8. Mr B was aggrieved by this because he considered the Council had changed its position from what it had told him in the pre-application advice. Mr B did not want to amend the plans to provide a gap between the new building and the existing barn because this would reduce the size of the new building to such an extent it would not be workable.
9. Mr B says during this period the Council did not explain why there needed to be a gap between the buildings. Mr B explained there has never been a gap between the buildings in the last 150 years since they were built. Mr B also says the Council could not provide any policy or guidelines to show why a gap was needed. Mr B says the Council’s decision was not based on material planning considerations.
10. Mr B says he reluctantly withdrew his planning application because the Council’s decision, which would be to refuse, was imminent. Mr B says he considered whether to wait for a refusal decision and appeal to the planning inspector. But, he was told by the planning inspector that he would have to wait around two years for a decision because of delays caused by COVID-19.
11. Mr B put in a complaint to the Council about the pre application advice and asked for a full refund of his planning application fee. The Council accepted that one sentence in the advice was open to a degree of interpretation, but the Council did not accept it was at fault. So, the Council said it would not refund Mr B’s planning application fee. However, as a goodwill gesture, the Council offered Mr B £100.
12. Mr B was not satisfied with the Council’s offer, so complained to us.

Assessment

13. Setting aside Mr B’s view that the Council’s pre-application advice was flawed and misleading, it is clear Mr B strongly disagrees with the Council’s view that there needs to be a gap between the proposed building and the existing barn.
14. Rather than withdraw his application, Mr B could have waited for the Council to issue a refusal decision and then put in an appeal to the planning inspector. The planning inspector would have considered whether the Council’s reasons for refusal were justified. The planning inspector has the power to grant planning permission. Also, the planning inspector can make a costs award against a local planning authority if it considers the authority has acted unreasonably, including whether the appeal was avoidable.
15. Mr B says his complaint is only about the pre-application advice and not the Council’s later decision that it would refuse the application. But, I find the two issues are linked.
16. In effect, an appeal to the planning inspector was a remedy for Mr B against the claimed U-turn by the Council about whether there needed to be a gap between the buildings.
17. I find it was reasonable for Mr B to appeal to the planning inspector even if it would have meant a delay before Mr B received the appeal decision. Planning can be a lengthy process and I note Mr B has previously made two applications to the Council for this proposed development.
18. Also, it is still open to Mr B to re-submit the application to the Council and appeal to the planning inspector if needed.

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Final decision

19. We will not investigate this complaint. This is because it was reasonable for Mr B to put in an appeal to the planning inspector.

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Investigator's decision on behalf of the Ombudsman