Summary: We will not investigate Mr X’s complaint about the Council’s delay in determining his planning application. We will not investigate a complaint where the complainant has an appeal right it is reasonable for them to use. Mr X had a right of appeal to the Planning Inspectorate for non-determination of his application which it was reasonable for him to have used. He has another Planning Inspectorate appeal right against the refusal of his application, which he says he will use, and which it is reasonable for him to use.

The complaint

1. Mr X applied in spring of 2021 for permission to build a new property on land to the rear of his late father’s house. Mr X complains the Council:
1. delayed in determining his planning application;
2. did not agree with him any extensions of time for officers to determine the application;
3. failed to communicate with him about the application;
4. promised a decision was imminent only to delay the matter further;
5. kept changing its view on whether the application would be approved or refused, and whether it would be decided by officers or the planning committee;
6. failed to follow their own policies on planning applications.
2. Mr X says the matter has taken his time and caused him trouble. He says he has been affected financially because the existing house has been empty while the planning application was going through. He says he paid double council tax, utility bills and maintenance costs on the vacant property, and extra planning consultancy fees. Mr X says he has lost faith in the Council and is anxious when dealing with them. He says he will be put to more inconvenience when he appeals to the Planning Inspectorate against the 2022 refusal of his application.
3. Mr X says the Council’s offer to return £462 in planning fees is not enough recompense. He wants the Council to:

• reimburse his extra utility bills, maintenance and planning consultant fees;
• discuss reimbursement of the extra council tax; and
• discuss a waiver of any further council tax while he appeals to the Planning Inspectorate.

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The Ombudsman’s role and powers

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 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

6. I considered information provided by Mr X, relevant online planning documents, and the Ombudsman’s Assessment Code.

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My assessment

7. If a council does not decide a planning application within eight weeks and does not agree an extension of time with the applicant or their agent, the applicant has the right of appeal to the Planning Inspectorate. This would be an appeal on the basis of non-determination of the application. We will not normally investigate where someone has such a formal appeal right. We may only investigate where we find it would have been unreasonable for them to have used their appeal.
8. Mr X says he did not appeal to the Inspectorate for the Council’s non‑determination of the application because officers promised him at various points after the eight-week period had passed that their decision was imminent, only to delay the matter further.
9. It was reasonable for Mr X to have used his appeal after the eight weeks was up. Mr X had a planning agent acting for him during the application and was aware of his appeal right. He says in his complaint to the Council that he had considered appealing but decided this would have only prolonged the planning process. The online planning documents also show Mr X and his agent submitted amended plans for the development in summer 2021, changing the scale and design of the proposal in response to objections. They also submitted some slightly amended plans in spring 2022. This indicates it was Mr X’s active choice to proceed with and pursue the application, to amend it to try to get the permission he sought. He did this rather than appealing to the Inspectorate, which he believed would have prolonged matters.
10. Even if the Council did prevent Mr X from using his non-determination appeal, he still has another right of appeal to the Planning Inspectorate against the Council planning committee’s refusal of the permission in 2022. As already explained, we will not investigate a complaint where someone has a formal right of appeal to the Inspectorate unless it would be unreasonable to expect them to do so. Mr X says in his complaint to us that he will be using this appeal right, which confirms it is reasonable for him to use it. It is also reasonable for Mr X to use this appeal because it provides a formal route for him to seek the financial recompense he believes he should get because of the planning process issues he has complained about. As part of any appeal, Mr X may submit an application for costs he claims he has incurred due to unreasonable actions by the Council leading up to its planning decision.

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Final decision

11. We will not investigate Mr X’s complaint because:

• it was reasonable for Mr X to use his appeal to the Planning Inspectorate against the Council’s non-determination of his application; and
• it is reasonable for Mr X to use his Planning Inspectorate appeal against the Council planning committee’s refusal of his application.

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Investigator's decision on behalf of the Ombudsman