Summary: We will not investigate Mr X’s complaint about the Council’s decisions on his two retrospective planning applications and about the parish council. We cannot investigate the Council’s refusal of his first planning application because he used his Planning Inspectorate appeal, which takes the matter out of jurisdiction. We will not investigate the Council’s refusal of his second application because it is or would have been reasonable for him to use his Planning Inspectorate appeal to pursue the permission sought. We cannot investigate complaints about parish councils.

The complaint

1. Mr X built a development on his land without planning permission. He has made two retrospective planning applications to the Council. Mr X complains the Council and parish council have unreasonably refused his planning applications, even after he amended them on the advice of Council officers.
2. Mr X says he built the development to house a facility to help his mother’s health. He says the planning situation is having an emotional impact on her. Mr X wants:
• support from someone who is not in the Council;
• planning powers taken away from the parish council, which he considers has an issue with him;
• the Council to approve his application and support the local community.

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The Ombudsman’s role and powers

3. 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.

4. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
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 courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).
7. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as parish councils. (Local Government Act 1974, sections 25 and 34(1), as amended)

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How I considered this complaint

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

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My assessment

9. Mr X applied for retrospective permission which the Council refused in 2023. He appealed to the Planning Inspectorate but his appeal was refused later in 2023. Mr X submitted a further planning application to the Council after discussing the matter with officers and making amendments. The Council’s officers recommended the application be granted permission but the Council’s planning committee refused it in 2024.
10. The planning system as set up by national government includes formal appeal routes for planning applicants. We cannot by law investigate complaints from applicants where they have used their Planning Inspectorate appeal rights. We will not investigate complaints from applicants where they have or had formal appeal rights to the Planning Inspectorate that it was not or would not be unreasonable for them to use.
11. We cannot investigate Mr X’s first planning application. That is because Mr X appealed to the Planning Inspectorate against the 2023 refusal decision. The use of that appeal takes outside our jurisdiction the entire core planning matter which led to the complaints.
12. We recognise Mr X’s complaint raises issues about Council officers’ actions during the planning processes. Inspectorate appeals may not consider these issues. However, the courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, we have no jurisdiction to investigate. The principle set down in this court judgement, as above in paragraph six, applies wherever a complainant has used a formal right of appeal other than through court proceedings, including a Planning Inspectorate appeal. This limitation on our jurisdiction applies even if the appeal will not or cannot provide a complete remedy for all issues raised. So we cannot investigate the Council’s involvement in the planning matter because Mr X used his Planning Inspectorate appeal right in 2023.
13. The Council’s 2024 decision on Mr X’s second application gave him a further Planning Inspectorate appeal. The Council’s decision notice gives details of those appeal rights and how to use them. It is not clear whether Mr X’s unauthorised development is currently the subject of a Council planning enforcement notice. Such a notice would have reduced his time limit for using his Inspectorate appeal from 12 weeks to 28 days. I have considered whether it is or was reasonable for Mr X to use or to have used his appeal right after the Council’s 2024 refusal, regardless of the length of time available to him to lodge it. Mr X has used an agent during the application so was represented by someone professionally involved in planning who would know of the appeals process. He would also be aware of his appeal rights having used them on the previous application, and from the Council’s 2024 decision notice. There has been no impediment to Mr X using his Inspectorate appeal right regarding that decision. It is also through an Inspectorate appeal, not a complaint to us, that Mr X may achieve the planning outcome he wants because the Inspectorate has powers we do not have to change the Council’s planning decision. For these reasons, it would not be unreasonable for Mr X to use or to have used his Planning Inspectorate appeal against the refusal of his second application, so we will not investigate.
14. Mr X’s complaint implies the parish council has planning decision powers and complains about its role in determining his applications. Parish councils are not bodies within our jurisdiction, so we cannot investigate complaints about them. In any event, parish councils do not have decision-making powers in the planning system. As formal consultees on planning matters, they are entitled to consider applications in their area and give their views on them to the local planning authority as part of the process. Planning authorities must take account of the views of parish councils when deciding applications, but they are not bound by those views. It is Maidstone Borough Council alone which was the planning authority and decision-making body here, not the parish council.

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Final decision

15. We cannot investigate Mr X’s complaint about the Council’s refusal of his first planning application because he used his Planning Inspectorate appeal, which takes the matter outside of our jurisdiction.
16. We will not investigate Mr X’s complaint about the Council’s refusal of his second planning application because it is not or would not have been unreasonable for him to use his Planning Inspectorate appeal right to pursue the permission sought.
17. We cannot investigate complaints about parish councils.

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Investigator's decision on behalf of the Ombudsman