Summary: We will not investigate this complaint about how the Council dealt with the complainant’s planning application and the pre-application planning advice it provided. This is because we are unlikely to find fault by the Council. The complainant also had the right to appeal to the Planning Inspector.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about the Council’s decision to refuse his planning application and the pre-application advice it provided. Mr X says he has incurred significant costs because of the Council’s actions.

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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 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))
4. 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.

5. 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 there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

7. Mr X could have appealed to the Planning Inspector if he did not agree with the Council’s reasons for refusing his planning application. I consider it would have been reasonable for Mr X to have used his right to appeal. The Ombudsman will not usually investigate when someone had a right to appeal to the Planning Inspector, even if the appeal would not have addressed all the issues complained about.
8. Mr X has also complained about the pre-application planning advice he received from the Council. He says he was given incorrect and misleading advice which he relied on and has incurred significant costs as a result.
9. Councils should act in good faith when providing pre-application planning advice. However, pre-application advice does not bind the council and councils cannot be expected to fully assess applications at the pre-application stage. In this case, the Council’s advice was given on a without prejudice basis and there was never any guarantee it would approve Mr X’s application. Any time and expense Mr X spent preparing the application was at his own risk. The Council has also explained it received new guidance and advice from Natural England after it provided Mr X with the pre-application advice that impacted its decision. The Council has agreed to waive its fee for pre-application advice should Mr X decide to make a revised application for the development.

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Final decision

10. We will not investigate Mr X’s complaint because we are unlikely to find fault by the Council in relation to the pre-application advice it provided. I also consider it would have been reasonable for Mr X to have used his right of appeal to the Planning Inspector.

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Investigator's decision on behalf of the Ombudsman