Summary: We will not investigate this complaint about the Council’s pre-planning application advice. The Council’s apology and refund of the planning application fee is an acceptable remedy to part of the complaint. And further investigation is unlikely to led to a different outcome. Also, it is reasonable to expect the complainant to appeal to the Planning Inspector against the refusal of a planning application.

The complaint

1. An agent represents the complainants who I shall call Mr & Mrs X.
2. The agent complains the Council have an inaccurate and misleading response to Mr & Mrs X’s requests for pre-planning application advice. They say the Council failed to advise the surveys which would be required or that the highways team would have significant concerns.
3. The agent says the Council should have advised against putting in the application to avoid the costs they incurred. Mr & Mrs X want the Council to refund them roughly £3,000. The agent also wants the Council to cover their costs incurred because of the unexpected time spent on Mr & Mrs X’s project.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister.

(Local Government Act 1974, section 26(6)(b), as amended).

6. The Planning Inspector considers appeals about decisions to refuse planning permission.
7. 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 further investigation would not lead to a different outcome

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

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How I considered this complaint

8. I considered information provided by the agent and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Planning guidance says pre-application advice provided by the local planning authority cannot pre-empt the democratic decision-making process or a particular outcome, if a formal planning application is made. The advice could, however, be a material consideration to be taken into account and given weight in the planning application process.
11. Mr & Mrs X applied for planning advice on developing two separate sites, I shall call, site A and site B.
12. Following receipt of the advice they put in two planning applications, The application for site A was withdrawn. The application for site B was refused.
13. The agent says the advice given on site A did not refer to the need for ecological surveys or other information which was required following submission of the planning application.
14. The Council accepts that only the site location plan made the application for site A invalid. It recognises extra information such as an ecological study, visibility splays and culverting of the ditch should not have been included on the invalid letter. However, it says it is likely this information would be needed to make a decision on the application.
15. Mr & Mrs X withdrew the application for site A and the Council refunded the application fee.
16. The Council accepts the preapplication advice could have made the issue of the visibility splays clearer. It apologised for the inconvenience. It confirmed it will remind Officers that only documents set out in the national list of validation requirements can be requested when accepting planning applications.
17. It will also remind staff of the importance of giving clear advice about the information required with a full planning application. I consider this is an acceptable remedy to this part of the complaint.
18. I accept that Mr & Mrs X incurred added expenses. However, pre-planning application advice is not binding. The only way to test this is to proceed with the planning application and appeal to a Planning Inspector if unsuccessful. Instead, they chose to withdraw the application and the Council refunded the fee.
19. I will not consider the part of the complaint about the application for site B. The Council refused this application and Mr & Mrs X had the right to appeal to the Planning Inspector against the refusal. We expect complainants to exercise this right.

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Final decision

20. We will not investigate Mr & Mrs X’s complaint because further investigation on the advice given for site A is unlikely to lead to a different outcome.
21. We will not consider the advice given for site B as there was a right to appeal to the Planning Inspector against the Council refusal of the planning application.

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Investigator's decision on behalf of the Ombudsman