Summary: We will not investigate Mr X’s complaint about the Council’s pre-application planning advice and eventual decision to refuse his application. We do not find evidence suggesting fault with the pre-application advice and it is reasonable to expect Mr X to appeal the decision to the Planning Inspectorate.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council’s planning department provided him with inconsistent and misleading pre-planning advice. He says this resulted in wasted time, fees and inconvenience.
2. Mr X seeks reimbursement of all costs incurred and compensation for his time. Mr X is aware he can appeal the Council’s decision to the Planning Inspectorate. He says his complaint is specifically about the pre-planning service advice and not the refusal decision.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault

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

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

7. I considered information provided by Mr X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr X says his initial planning application to develop his home in 2016 was refused. He then engaged the Council’s pre-planning advice service for recommendations.
10. In September 2019 Mr X was sent pre-application advice. The letter was clear that views or opinions expressed therein were given in ‘good faith and without prejudice to the formal process of consideration’. There was no guarantee from the Council that any future application would be granted based solely on this information. However, the Council acknowledged that ‘some weight’ would be given to the advice provided.
11. Mr X then submitted a new revised planning application in 2020 for a proposed development. It was refused by the Council in March 2021.
12. Mr X believes the pre-planning advice was misleading and led to the refusal. However, as mentioned pre-application advice is informal and non-binding; it does not amount to an undertaking that any application will be approved. The planning officer advised Mr X based on their judgement of what may be acceptable.
13. The refusal indicates he failed to comply with certain requirements. It appears the determining officer has interpreted the plans differently. Design interpretation is a subjective issue based again on the planning officer’s professional judgment, so we cannot fault the merits of the Council’s decision.
14. The issues Mr X has complained about are linked to the planning decision which he can appeal. It would be reasonable for him to use his appeal right and we will not investigate where an appeal right exists even if the appeal will not deal with all the issues he has raised.
15. Mr X says that he still wants to find a way to work with the Council to overcome the barriers to refusal. The Planning Inspectorate is therefore the correct platform for him to address these matters.

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Final decision

16. My final decision is that we should not investigate this complaint because it is unlikely we could attribute Mr X’s claimed injustice to the fault alleged. It is also reasonable to expect Mr X to seek a remedy to his complaint by appealing the decision with the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman