Summary: We will not investigate Miss X’s complaint about the Council’s planning enforcement notice, its refusal of her retrospective planning application, its advice to submit that application and how it dealt with her complaint. Miss X lodging her appeal to the Planning Inspectorate against the planning refusal and enforcement notice takes these matters outside our jurisdiction. We cannot investigate the Inspectorate’s decision that her appeal was late. There is not enough evidence of Council fault in it advising her to submit a retrospective planning application to warrant investigation. We do not investigate councils’ complaint-handling where we are not investigating the core issues giving rise to the complaint.

The complaint

1. Miss X fitted a gate and fence along her house’s existing boundary for security reasons. The Council advised her she needed to apply for retrospective planning permission for them, which she did in summer 2021. The Council refused the permission in autumn 2021. The Council issued an enforcement notice in the interim, to be kept on hold until any appeal outcome. Miss X appealed to the Planning Inspectorate late in 2021. The Inspectorate declined to consider Miss X’s appeal because it said it was late, which she disputes.
2. Miss X complains the Council:
1. incorrectly advised her to apply for retrospective planning permission for her gate and fence;
2. gave her incorrect information about the deadline for her appeal to the Planning Inspectorate;
3. enforced against her but has not done so against owners of similar structures in the area;
4. delayed in responding to her complaint.
3. Miss X says the fence and gate cost £1,000. She says the matter has cost her time and caused her trouble and stress. She wants the Council to stop its enforcement case and allow her to keep the fence and gate.

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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 Inspectorate acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
6. The Inspectorate 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.

7. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).

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How I considered this complaint

8. I considered information from Miss X, relevant online planning documents and the Ombudsman’s Assessment Code.

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My assessment

9. Miss X says the Council was wrong to advise her to apply for retrospective planning permission for her development. This was advice from the Council, which it was entitled to give where it considers an unauthorised development has occurred. Councils cannot force anyone to submit a planning application. It was Miss X’s decision to do so. She could have decided not to apply and await any enforcement action instead. There is not enough evidence it was Council fault to advise Miss X to make a planning application to warrant us investigating.
10. The Council refused Miss X’s planning application in autumn 2021. That decision gave her appeal rights to the Planning Inspectorate that she used in late 2021. The enforcement notice the Council served on her gave her a further appeal right. The planning refusal and enforcement notice both related to the same development so would have been linked together as one appeal. We cannot by law investigate where someone has exercised their right of appeal to the Inspectorate.
11. I note Miss X says the Council has enforced against her development but not against other similar ones in the area. But we cannot investigate the grounds for the Council’s decision to enforce as Miss X’s development was the subject of her Planning Inspectorate appeal. That is the process for challenging the Council’s enforcement decision.
12. I realise the Planning Inspectorate did not consider Miss X’s appeal because it decided she had lodged it out of time. But her lodging of that appeal, irrespective of its outcome, takes this matter outside our jurisdiction. We have no powers to investigate the Inspectorate’s handling of her appeal. We cannot overturn or intervene in that process. If Miss X believes the Inspectorate’s decision is wrong, that is a matter for her to pursue with the Inspectorate, which she may have already done.
13. Miss X says the Council did not tell her the correct dates by which she could appeal to the Inspectorate. However, the courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, we have no jurisdiction to investigate. The principle set by this court judgement, referred to in paragraph seven above, applies wherever a complainant has used a formal right of appeal other than through court proceedings, including Planning Inspectorate appeals. This limitation on our jurisdiction applies even if the appeal will not or cannot provide a complete remedy for all the injustice claimed which relates to the planning processes. So we cannot investigate the Council’s involvement in the planning matters because Mrs X has used her Planning Inspectorate appeal rights. If Miss X believes she was misled, by the Council or any advisers she consulted about her appeal deadline, that is an argument for her to make to the Planning Inspectorate against its decision that she lodged her appeal late.
14. Miss X complains about delays in the Council’s responses to her complaint. We do not investigate councils’ internal complaints processes in isolation where we are not investigating the core issues giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.

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Final decision

15. We will not investigate Miss X’s complaint because:
• there is not enough evidence of fault by the Council in it advising Miss X to submit a retrospective planning application to warrant us investigating; and
• her lodging of her appeal to the Planning Inspectorate regarding the planning refusal and enforcement takes these matters out of our jurisdiction; and
• we have no powers to investigate the Planning Inspectorate’s decision that her appeal was late; and
• we do not investigate councils’ complaint-handling where we are not investigating the core issues giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman