Summary: We will not investigate this complaint about the Council’s handling of the complainant’s discharge of condition and retrospective 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 have appealed to the Planning Inspectorate against any delays in determining his applications, and he has already appealed against the imposition of Community Infrastructure Levy surcharges.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council:
• Failed to determine a discharge of condition (DoC) application, and did not respond to associated communications from himself or his agent.
• Delayed in determining his retrospective application, and did not inform him the application would incur a Community Infrastructure Levy (CIL) surcharge.
• Delayed in determining his complaint, and the process lacked veracity and was not objective.

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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’. But 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
• it would be reasonable for the person to have asked for a council review (process) or appeal.

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

4. The law also 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 or to have appealed. (Local Government Act 1974, section 26(6)(b))
5. The Planning Inspector (PINS) acts on behalf of the responsible Government minister. PINS can consider appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission or an application to discharge a condition
• CIL surcharges

6. We cannot investigate a complaint if someone has already appealed to a government minister. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed (Local Government Act 1974, section 26(6)(b), as amended)
7. Finally, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

8. I considered information provided by Mr X and the Council, which included the complaint correspondence and information about the chronology of events.
9. I also considered our Assessment Code, and information on the Council’s website about Mr X’s applications.

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My assessment

10. I do not consider the Ombudsman should pursue Mr X’s complaint for the following reasons.
11. If Mr X was unhappy about the delay in determining his DoC or retrospective planning applications, then it was open to him to appeal to the Planning Inspectorate. With reference to paragraphs 4 and 5 above, I see no reasons to exercise discretion on this restriction, so the Ombudsman will not investigate Mr X’s concerns about the delay in determining these applications.
12. In addition, Mr X could have initiated the deemed discharge process (see Article 28 of the Town and Country Planning (Development Management Procedure) (England) Order 2015) in relation to his DoC application, so bullet point 4 of paragraph 3 above would also apply.
13. I also understand Mr X has appealed against the CIL surcharges which have been imposed in relation to his retrospective planning application. With reference to paragraph 6 above, this means the Ombudsman has no power to investigate the parts of the complaint about the surcharges.
14. And as the Ombudsman is not investigating the substantive issues at the heart of Mr X’s complaint, we would not normally use public resources to consider his associated concerns about the Council’s complaint handling in isolation.

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Final decision

15. We will not investigate Mr X’s complaint because:
• it is reasonable to expect him to have appealed to PINS against any delays in determining his applications,
• we have no jurisdiction to investigate where that right of appeal has already been used, and,
• we would not normally pursue residual concerns about the complaints process in isolation.

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Investigator's decision on behalf of the Ombudsman