Summary: Mr C complained the Council failed to issue a decision notice for his outline planning application following its approval and delayed in doing so for over a year. Mr C also complained the Council failed to refund his application fee in line with government guidance. We have found fault but consider the agreed action of a refund of the application fee, symbolic payment and review of procedure provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to issue a decision notice for his outline planning application following its approval and delayed in doing so for over a year. Mr C also complains the Council has failed to refund his application fee in line with government guidance.
2. Mr C says because of the Council’s fault, he has suffered avoidable frustration and inconvenience in pursuing the matter and has not received the application fee refund due to him.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I read the papers provided by Mr C and discussed the complaint with him. I have also considered information from the Council. I explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

6. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
7. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.
8. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.

Key events

9. The following is a summary of key events. It does not include everything that happened.
10. Mr C made an application for outline planning permission for two dwellings in October 2019.
11. The Council’s planning committee considered the application in April 2020. The approved minutes of the committee record it was resolved to recommend the application “be approved, subject to the prior completion of an appropriate legal agreement to secure the maintenance of the access to the site along the public right of way and also the installation of bollards to prevent vehicles from parking within the northern visibility splay” and subject to several conditions.
12. Following the committee meeting, the Council emailed Mr C to say its legal team would liaise with him about the legal agreement and the decision notice would be issued once the agreement was finalised. Mr C says he understood his application had been approved at this point although a decision notice was not issued.
13. Mr C chased the Council at the end of April saying it had been over a fortnight since approval was granted at committee. The Council advised during May it needed to agree the ecology conditions with relevant committee members before the minutes could be finalised. The Council subsequently confirmed in May the conditions had been agreed and provided the list to Mr C.
14. Mr C emailed the Council in mid-May to check the only outstanding matter was the format for the s106 unilateral undertaking and signing a finalised document before his certificate was issued. The Council responded to confirm this was the case.
15. In August 2020 Natural England wrote to all planning authorities in Somerset to confirm they should not issue any further decisions on planning application that may result in nutrient neutrality impacts on certain areas/sites.
16. There followed significant correspondence between Mr C and the Council during the period June to December 2020 about how to bring the matter to a conclusion. The Council apologised to Mr C in January 2021 for the delay in determining the application and referred to resources being stretched.
17. The Council emailed Mr C at the end of March about solicitor fees and to say even if the outstanding issues could be resolved all planning applications involving the development of housing were now subject to phosphate mitigation measures. Mr C complained at the end of March about the way the matter had been dealt with since approval was given at the April 2020 committee.
18. The Council reviewed the video of the relevant committee meeting and wrote to Mr C in May to say the minuted resolution of the committee was not a true reflection of the proposal put forward and seconded by councillors. The resolution wrongly required a section 106 agreement to be entered into before the granting of planning permission. The Council confirmed that as this requirement did not form part of the committee resolution it could not insist on its completion and the application would fall back on the signed unilateral undertaking from 2019. The Council apologised that this issue had not been identified earlier. The Council confirmed the only delay following the committee meeting in April 2020 had been the due to the s106 agreement and as it was now clear this had not been required the outline planning permission could be granted. The Council further noted that applications for housing sites were currently unable to have their permissions granted due to the phosphate issues in the area. However, the Council took the view that this was an unusual case because the permission should have been granted before the phosphate issue had been raised.
19. The Council granted planning permission and issued a decision notice in June 2021.
20. The Council has subsequently suggested to the Ombudsman that it should not have issued a decision notice which did not accord with the committee minutes without first seeking committee approval. The Council further noted if it had resolved the need for a s106 agreement was an error, and had made this decision at any time after receipt of the August 2020 letter from Natural England, then the decision to approve development that would require a Habitats Regulations Assessment should not have been issued. It is a matter of some concern if the Council did not follow its own protocols here.
21. However, the Council has accepted the formal minutes from the relevant committee meeting did not accurately reflect the committee’s resolution which did not require a s106 agreement. This is fault. The Council has previously advised Mr C that but for this fault his application would have been approved with a decision notice issued in April 2020. I am satisfied there followed a significant period of avoidable delay before a decision notice was issued in June 2021.
22. The Council has explained that this application was the first hybrid planning meeting following COVID-19 restrictions and the processes were evolving. It also explained that it was losing a significant proportion of established staff and was heavily reliant on contractors during this period. The Council has confirmed it is completing a review of its planning service with a view to reducing such reliance.
23. Government guidance states that if an applicant has not exercised their right of appeal, and the application remains undetermined after 26 weeks, then the fee paid by the applicant will be refunded to them (unless a longer period for the decision has been agreed).
24. The Council says it did not receive a request for a refund of Mr C’s fee. However, I note Mr C raised this issue in his complaint letter sent to the Council via his solicitors in February 2023 but did not receive a response on this point.

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Agreed action

25. In order to provide a suitable remedy for Mr C’s injustice, the Council will within one month of my final decision:

• provide a refund of Mr C’s outline application fee; and
• make a symbolic payment of £200 to reflect avoidable inconvenience and frustration caused to Mr C over a significant period from the fault identified above.

26. Within three months of my final decision, the Council should also review its administrative processes to ensure:

• minutes provide an accurate reflection of committee resolutions;
• there is a protocol in place to address any identified inaccuracies which is in line with the Council’s scheme of delegation; and
• relevant officers are advised or reminded accordingly.

27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman