Summary: Mr X complained the Council did not follow procedure and communicate with him before demanding a payment, withholding planning permission until he made the payment. Mr X said this has financially impacted him and the project is no longer viable. We ended our investigation because the complaint is outside the Ombudsman’s jurisdiction. Mr X has appeal rights to the planning inspector and it is reasonable to expect him to exercise his right of appeal.

The complaint

1. Mr X complained the Council did not follow procedure and communicate with him before demanding a payment, withholding planning permission until he made the payment. Mr X said this has financially impacted him and the project is no longer viable.

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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 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:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

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

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I read Mr X’s complaint and spoke to him about it on the phone.
5. I considered information provided by Mr X and the Council.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

9. Planning considerations do not include things like:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.
11. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
12. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
14. The purpose of the planning system is to contribute to the achievement of sustainable development.
15. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs.
16. The Community Infrastructure Levy (CIL) is a surcharge that councils can impose on new development in their areas. The surcharge only applies if the Council has a CIL policy, with details and rates on how the charge will be applied. Most new development that creates additional floor space of 100 square metres or more is likely to be liable for a charge.
17. Some developments may be eligible for relief or exemptions from the levy. Exemptions include developments built by ‘self-builders’.
18. It is possible to appeal against CIL charges, if:

• The claimed breach which led to the charge did not happen;
• The Council did not serve the CIL liability notice in relation to the development; and
• The charge has been calculated incorrectly.

19. CIL charges are subject to statutory rights of appeal with the Planning Inspectorate and Valuation Office Agency. The Planning Inspectorate deals with appeals relating to liability for CIL and the Valuation Office Agency deals with appeals about the amount of CIL due to be paid.
20. 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.
21. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.
22. If an applicant disagrees with the Council’s decision regarding an application to modify or discharge a section 106 agreement they may appeal to the Planning Inspectorate.
23. The Council open spaces policy details new developments should have areas for the public. If they do not, the development should make a financial payment to support public spaces in the local area.

What happened

24. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
25. Mr X is a property developer. He developed the planning application through meetings with the Council.
26. In January 2023, the Council advised Mr X the planning permission would need a section 106 agreement for a payment for its open spaces policy. Mr X did not agree he should make any open spaces payment. Mr X agreed to make the payment as he knew he would not receive planning permission without this payment. He requested the Council allow him to pay this without the need for a section 106 agreement. The Council advised it would consult its legal department to find out if it could accept this request.
27. Mr X continued to chase the Council for a response. He got independent legal advice in March 2023 and agreed to the Council’s section 106 agreement. His legal representation created a unilateral undertaking agreement. He sent this agreement to the Council to consider the document and agree to it.
28. Mr X continued to chase the Council to confirm if it accepted the unilateral undertaking agreement.
29. Mr X signed the unilateral undertaking agreement in July 2023. The Council dated to the document after Mr X signed it.
30. The Council granted planning permission in July 2023 with various conditions.
31. Mr X complained to the Council in August 2023. He complained about the way the Council dealt with the planning application. This included costs and the time it took for the Council to make decisions before granting approval for the planning application.
32. The Council responded to Mr X’s complaint in September 2023. It did not uphold Mr X’s complaint. The Council said it informed Mr X about the costs relating to the application. It advised the legal issues relating to the application were complex and took time to consider. Mr X did not agree with the Council’s response and asked it to escalate his complaint to stage two.
33. The Council provided its stage two response in October 2023. The Council repeated it did not uphold Mr X’s complaint. The Council stated it informed Mr X about the charges and advised the legal contract, provided by Mr X needed amending which took additional time and cost.
34. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to make the project financially viable.

My findings

35. We are not a planning appeal body. This means we do not take a second look at a decision to decide if it was wrong. Our role is to review the process by which planning decisions are made. We look for evidence of fault in the decision-making process. Where we find it, we decide whether it caused a significant injustice to the individual complainant. If we consider the Council followed its processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the Council made.
36. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context. This includes the significance of any fault we might find and its impact on others.
37. I have ended this investigation for the following reasons:
38. The planning complaint is outside the Ombudsman’s jurisdiction because the developer company/Mr X had a right of appeal to the planning inspector.
39. 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
• and aspects of section 106 agreements.
40. It is reasonable for Mr X to have used his right of appeal.
41. Mr X said he has suffered significant financial losses and the project is no longer viable. We are not a court and cannot determine whether the Council should be held responsible for the large sums Mr X claims.

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Final decision

42. I have completed my investigation. I have ended my investigation because Mr X had or has rights of appeal to the planning inspector which it was reasonable for him to use.

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Investigator's decision on behalf of the Ombudsman