Summary: We have upheld this complaint about how the Council dealt with the complainant’s planning application. This is because the Council has agreed to an appropriate remedy for the injustice caused to the complainant because of the delays. We will not investigate the remaining issues complained about as the complainant has appealed, or could have appealed, to the Planning Inspector.

The complaint

1. Mr X has complained about how the Council dealt with his planning applications. He says there have been delays and the Council failed to properly communicate with him. Mr X says he has incurred additional costs because of the Council’s actions, and it should compensate him.

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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. We cannot investigate a complaint if someone has appealed to a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
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. 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:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

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

7. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

8. I considered information provided by Mr X and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. The Ombudsman cannot investigate Mr X’s complaint about the Council’s decision to refuse his planning application. This is because he has appealed to the Planning Inspector about the Council’s decision and the Ombudsman cannot investigate matters where someone has already used their appeal right.
11. Mr X also could have appealed to the Planning Inspector if he disagreed with the Council’s decision to refuse his other applications or if he was unhappy with how long the Council was taking to determine his applications. The Ombudsman will not usually investigate when someone had a right to appeal to the Planning Inspector, even if the appeal would not address all the issues complained about.
12. Mr X has raised concerns about how the Council dealt with his planning applications and says the Council failed to properly communicate with him. Although these issues may not be considered as part of an appeal to the Planning Inspector, we will not investigate matters if the substantive issue complained about is outside our jurisdiction.
13. Mr X has said the Council should refund the planning fee he paid for one of the applications as it took the Council over a year to determine the proposal. Government guidance says that where an application remains undetermined after 26 weeks for major applications or 16 weeks for non-major applications, then the fee paid by the applicant should be refunded unless a longer period for the decision has been agreed.
14. If we were to investigate this part of Mr X’s complaint it is likely we would find fault which has caused Mr X injustice. We therefore asked the Council to consider remedying the injustice caused by refunding the application fee, minus the administration fee to resolve the complaint early.

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Final decision

15. To its credit, the Council agreed to refund the planning fee, minus an administration fee and a payment has now been made to the account that originally paid the planning fee.
16. I consider the remedy agreed by the Council is suitable and it is unlikely an investigation would achieve anymore.
17. We will not investigate the remaining issues complained about as Mr X has appealed, or could have appealed, to the Planning Inspector.

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Investigator's decision on behalf of the Ombudsman