Summary: We will not investigate Mr and Mrs X’s complaint about the Council’s delay in dealing with a planning application. The developer who had a contract with Mr and Mrs X had an appeal right to the planning inspector. It is reasonable for Mr and Mrs X to use the legal remedy of court if they believe the Council was negligent.

The complaint

1. Mr and Mrs X complain the Council delayed dealing with a planning application to develop a property they own which was submitted in April 2020. Mr and Mrs X agreed a contract with the applicant developer for the sale of the land. They say due to the planners delay the sale of the property was delayed and they were obliged to continue paying over £900 business rate per month. They want the Council to refund the rates paid between late 2020 and summer 2021 when planning permission was granted. They say the Council failed in its duty of care and should pay damages for their losses.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• we cannot achieve the outcome someone wants, or
• there is or was another body better placed to consider this complaint.

(Local Government Act 1974, section 24A (6))

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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))
5. 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

6. I considered information and comments provided by the complainants and checked the position with the application on the Council’s website. I have considered the complainants reply to my draft decision statement.

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My assessment

7. I will not investigate this complaint for the following reasons:
8. A complaint about delay (usually over eight weeks) in dealing with a planning application is usually outside the Ombudsman’s jurisdiction. A developer has the right of appeal to the planning inspector who acts on behalf of the responsible government minister (see paragraph 3 and 4 above). The planning inspector has the power to determine the case. A costs application is possible where a council may have acted unreasonably.
9. I will not investigate this complaint because it was for Mr and Mrs X and the developer to decide if the delay justified an appeal. The legal agreement between them could be expected to cover delay in the planning application however caused. If the delay was significant it would have been reasonable for the developer to have appealed to the planning inspector.
10. A complaint of negligence, breach of duty, or economic loss is outside the Ombudsman’s jurisdiction. Mr and Mrs X have or had a legal remedy at court (see paragraph 5). I consider it reasonable for Mr and Mrs X to use their legal remedies. A court has the power to decide such a claim and Mr and Mrs X say they have a legal background.
11. The Council granted planning permission during the summer which resolves the matter.
12. I have dealt with this complaint as being essentially a planning complaint. Business rate and planning decisions are made on different criteria. There is no fault in the Council applying policy and expecting Mr and Mrs X to pay the business rate due.

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Final decision

13. The Ombudsman will not investigate Mr and Mrs X’s complaint about the Council’s delay in dealing with a planning application. The developer who had a contract with Mr and Mrs X had an appeal right to the planning inspector. It is reasonable for Mr and Mrs X to use the legal remedy of court if they believe the Council was negligent.

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Investigator's decision on behalf of the Ombudsman