Summary: We will not investigate this complaint about the Council’s handling of the complainant’s planning applications. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to use, or have used, the rights of appeal to the Planning Inspectorate, we cannot investigate any parts of the complaint where that alternative remedy has already been used, and we cannot determine the legality of a pre-commencement condition.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council was slow to determine his planning applications, and its decisions were unduly influenced by the objections from neighbours. He says this has resulted in unreasonable rejections, and the imposition of unreasonable conditions which did not observe due procedure.

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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 Ombudsman can investigate 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 an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider the matter.

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

4. And the law says we cannot normally investigate a complaint when someone can appeal, or could have appealed, 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 Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector can consider 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.

6. Furthermore, the courts have said that where someone has already used their right of appeal, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

7. I considered information provided by Mr X and information about the planning applications on the Council’s website.
8. I also considered our Assessment Code.

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My assessment

9. The restriction detailed in paragraphs 4 to 5 above apply to Mr X’s complaint. This is because it was open to him to appeal to the Planning Inspectorate against any delay in determining his applications, the refusals, or if he objected to any conditions imposed on the planning permissions. The Ombudsman has no power to amend or overrule the Council’s planning decisions. I therefore consider it reasonable to expect Mr X to use, or have used, these rights of appeal in order to challenge the Council’s decision making, so the Ombudsman will not investigate any parts of the complaint about these matters.
10. In addition, only the courts could determine whether the pre‑commencement condition imposed by the Council is lawful/valid, so an investigation by the Ombudsman would not lead to a different outcome on that particular point.
11. Finally, and with reference to paragraph 6, as Mr X has already appealed against one of his refused applications, the Ombudsman has no power to consider any parts of the complaint about the Council’s handling of that application. This limitation on our jurisdiction applies even if the appeal cannot provide a complete remedy for all the injustice claimed.

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Final decision

12. We will not investigate Mr X’s complaint because it is reasonable to expect him to use, or have used, the rights of appeal to the Planning Inspectorate, we cannot investigate any parts of the complaint where that alternative remedy has already been used, and we cannot determine the legality of the pre-commencement condition imposed on his planning permission.

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Investigator's decision on behalf of the Ombudsman