Summary: We will not investigate this complaint about the Council’s handling of planning matters related to several planning applications and prior approval applications made by a developer. Parts of the complaint fall outside our jurisdiction due to the passage of time and the availability of appeal rights to the Planning Inspector. And determining whether the Council is responsible for financial losses is a matter for the courts.

The complaint

1. Mr X complains on behalf of his client, Company Y. He says the Council has:
• delayed in determining Company Y’s planning applications due to misunderstanding or misinterpreting the law
• caused unnecessary frustration and cost; and
• failed to understand its complaint.
2. Company Y want the Council to:
• apologise for the delays
• reimburse its consultancy fees
• reimburse its legal fees
• pay compensation for the refinancing necessary because of delays in the planning process; and
• validate all planning applications going forward without delay

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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))

6. The Planning Inspector acts on behalf of the responsible Government minister and considers appeals, including those about a decision to refuse permission.
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

8. I considered information provided by:
• Mr X, including the Council’s responses to the complaints
• information on the planning pages of the Council’s website; and
• the Ombudsman’s Assessment Code.

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My assessment

9. Mr X complains the Council delayed in processing and deciding on several planning applications and prior approval applications going back to 2017.
10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The restrictions highlighted at paragraphs 4 and 5 apply to Mr X’s complaint because the applications were made between 2017 and 2019. Complaints about these are therefore late.
11. We cannot investigate complaints where a person has a right of appeal to the Secretary of State. The Planning Inspector deals with appeals about a range of planning decisions made by planning authorities on behalf of the Secretary of State. This means there is only a limited number of circumstances where we would consider a complaint from a person who has applied for planning permission or been the subject to action by a planning authority.
12. For most of the applications Company Y could have appealed to the Planning Inspector for non-determination. Mr X says Company Y decided not to appeal choosing instead to engage with the Council because an appeal would not provide a remedy.
13. However, I see no grounds which warrant exercising discretion to investigate these issues now. It was open to Company Y to have challenged the Council’s failure to determine its applications via the Planning Inspector at the time and it was its decision not to do so.
14. Mr X is seeking repayment of legal and consultant fees as well as compensation for refinancing. This is not something we can achieve. Whether the Council is liable for Company Y’s financial losses is a legal matter. We consider complaints about Council’s administrative actions. This role is not the same as a court of law. A court of law is the suitable body to decide contested questions of law (such as liability for financial loss). It also decides whether compensation must be paid if the Council has been negligent and to enforce any award of compensation. Therefore, it is not unreasonable to expect Mr X to go to court to seek a remedy.

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Final decision

15. We will not investigate Mr X’s complaint because:
• parts of it fall outside our jurisdiction due to the passage of time
• parts of it fall outside our jurisdiction because of the availability of appeal rights which Company Y close not to exercise; and
• We cannot determine whether the Council is liable for Company Y’s financial losses. This is a matter for the courts.
   

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman