Summary: We will not investigate Mr X’s complaint about the Council’s processing of his planning applications for permission to replace windows in his relative’s Grade II Listed property, or it indicating it would refuse all future applications for similar works. The matters complained of do not cause Mr X sufficient significant personal injustice to warrant investigation. Mr X had appeal rights to the Planning Inspectorate which it would have been reasonable for him to have used. There is not enough evidence of fault in the Council pre-judging planning applications to warrant investigation. We also cannot achieve the outcome Mr X seeks.

The complaint

1. Mr X manages a property for the owners, his son and daughter. They are the landlords of the property which is Grade II Listed. Mr X has made four applications to replace the windows with double glazed units in parts of the Grade II Listed property, including one Listed Building application. The owners want to improve its energy efficiency in line with rental property standards.
2. Mr X complains the Council:
1. made an inconsistent and arbitrary decision to refuse planning permission to allow the property’s owners to fit double-glazed windows in a later extension to their property;
2. has indicated it would make a presumption to refuse all such double-glazing applications in future.
3. Mr X says the Council’s actions have prevented the fitting of double glazing at the property and other improvements. He wants the Council to grant the planning consent immediately under the ‘Lawful Development’ process.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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), as amended)
6. The Planning Inspector acts on behalf of the responsible Government minister. The 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

7. I considered information from Mr X, relevant online planning information and the Ombudsman’s Assessment Code.

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My assessment

8. Mr X has withdrawn all the planning applications he has made for the property’s replacement windows. None of the applications have been the subject of a Council planning decision. Mr X was the planning applicant but is not the property’s owner. This means he is not caused significant personal injustice by it not gaining planning permission. We recognise Mr X may have had annoyance and frustration from the Council’s planning process. But that is not a sufficiently significant personal injustice to him which would justify an investigation.
9. In any event, the Council’s planning process is there to make decisions on applications. Any concerns Mr X has about that process are resolvable for him as the applicant by rights of appeal to the Planning Inspectorate. Mr X had the option to let any of the planning applications proceed to allow the Council to make a decision. If the Council refused permission or placed a condition on it with which he disagreed, he would then have had a right of appeal to the Planning Inspectorate to challenge that decision or condition. It would have been reasonable for Mr X to use those appeal rights as they provide the opportunity to challenge a council’s decision and get the planning outcome he wanted. It was Mr X’s decisions to withdraw the applications which prevented him having access to those appeal rights, not any action by the Council.
10. The Council accepts its validation process was inconsistent on Mr X’s applications. It considers it should not have validated an earlier application using Mr X’s documents. Where a council identifies and amends an earlier fault, we would not expect it to knowingly repeat it in a future application. Officers have set out the documents Mr X needs to provide so an application is validated. There is not enough evidence of fault in the Council’s request for documents permitting officers to validate Mr X’s applications to warrant us investigating.
11. Furthermore, if Mr X disagreed with the Council’s requirements to validate his applications, he could have also appealed this. An applicant can serve a notice on the planning authority under Article 12 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. The Council would have had to consider the notice and issue a ‘validation notice’ stating the documents requested for validation are no longer required, or a ‘non‑validation notice’ stating the information was still required. The Council would then need to respond within the statutory period for determining the application, from the date the application was received. If the applicant disagrees with a non-validation notice they can appeal to the Planning Inspectorate on grounds of non‑determination. It would have been reasonable for Mr X to use this appeal right, and would be reasonable for him to do so on any future application, because it is the formal process put in place to resolve these planning issues.
12. Mr X says other similar properties in the Council’s area have gained planning permission for the type of works to the windows the property owners want. Each decision is made on its own facts and merits. But we cannot compare a Council decision for Mr X’s application property with its decisions on other properties. This is because the Council has not decided any of Mr X’s applications as he withdrew them before it could do so. There is no Council planning decision for the owner’s property to compare with those it made on different properties.
13. Mr X says the Council has indicated it would refuse all future applications for double-glazing at the property. We would not expect a council to fetter its decision-making discretion in this way. Planning authorities must consider applications on their own facts and merits. Officers have given pre‑application advice, and heritage building advice, but this is not a planning decision and it does not pre-judge the outcome of any application he might make. The Council’s final position on Mr X’s previous applications has never been reached, so we cannot say earlier applications were pre-determined, because they were not determined at all. There is not enough evidence of the Council pre-judging or fettering its planning discretion to warrant an investigation.
14. Mr X wants us to order the Council to grant him the planning permission he seeks for the property. We cannot make such orders to councils, bypassing the planning process. Mr X may wish to make a fresh application to the Council for the permission he seeks. That we cannot achieve the outcome Mr X and the owners seek is another reason why we will not investigate the complaint.

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Final decision

15. We will not investigate Mr X’s complaint because:
• there is insufficient significant personal injustice to Mr X caused by the matters complained of to warrant investigation; and
• he had applicant appeal rights to the Planning Inspectorate which it would have been reasonable for him to have used to pursue the permission; and
• there is not enough evidence of fault in the Council pre-judging planning applications to justify an investigation; and
• we cannot achieve the outcome Mr X seeks from the complaint.

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Investigator's decision on behalf of the Ombudsman