Summary: We will not investigate Mr X’s complaint about the Council’s handling of his planning application in 2021. This is because there is not enough evidence of fault by the Council.

The complaint

1. The complainant, Mr X, complains a council planning officer told him he had to change his plans to develop his property as part of the proposal was unacceptable. He says the officer did not tell him he had the option to disregard their advice and claims this wasted his time. He is also unhappy with the Council’s handling of his ‘freedom of information’ request and says it delayed in responding to his complaint.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.

6. The Information Commissioner's Office considers complaints about freedom of information (FoI). Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

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

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My assessment

8. Mr X applied for planning permission to develop his property in 2021. As part of the proposal he included features which the planning officer dealing with the case felt were unacceptable. The officer therefore suggested Mr X remove them from the proposal to make it acceptable, and Mr X complied. The Council then granted planning permission.
9. Mr X made a new application sometime later and, based on the previous advice he had received from the officer, he did not include the features in his plans. Once the Council issued planning permission for the new proposal Mr X applied to amend the permission to include the features. The Council considered the amendment and decided it was acceptable; it therefore granted permission for the amended scheme.
10. Mr X is unhappy the Council does not have any specific policy or guidance regarding the features and believes the Council wasted his time by telling him to remove them from the original proposal. He made an FoI request to the Council and was not happy with its response and says it has failed to respond to his request for a review.
11. We will not investigate Mr X’s complaint about the Council’s handling of his FoI request because it would be reasonable for Mr X to refer the matter to the Information Commissioner.
12. We will not investigate Mr X’s complaint about the planning officer’s instructions because there is not enough evidence of fault causing Mr X significant injustice.
13. Councils must determine planning applications based largely on judgement. There is no requirement for councils to have a specific policies or guidance about every possible feature that could be present in any planning application. Planning policies are more general and allow for consideration of the impact of any part of a proposal, whatever it may be. If the officer dealing with a case feels a part of the proposal is not acceptable they may suggest the applicant amends it rather than refusing the whole application.
14. In this case the planning officer felt the features referred to at Paragraph 8 were not acceptable and they therefore suggested Mr X remove them from the proposal. Mr X says he did so “knowing [they were] Permitted Development” and did not therefore require planning permission anyway.
15. But he now believes that removing the features were a waste of time and suggests they were always acceptable. He also believes the Council should have told him explicitly that he did not have to follow the officer’s advice.
16. But there was no requirement for the Council to tell Mr X this. Mr X submitted the application based on the plans he wanted to build and he was the one with the option to amend them, which he did. Had he felt the features required planning permission and were acceptable he could have declined the officer’s request and asked the Council to determine the application as it stood. If the Council had refused the application, and if Mr X disputed the decision, it would have been reasonable for him to appeal. The law does not allow us to question the planning officer’s judgement in these circumstances and there is therefore no basis for us to look back more than two years to decide if it was correct.
17. The Council confirms circumstances since Mr X’s original application more than two years have changed and that it has now granted planning permission as it was satisfied the impact of the proposal as a whole, including the disputed features, was acceptable. But this does not show the original advice, or the officer’s handling of the matter, was wrong.
18. Mr X is also unhappy with the way the Council dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

19. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman