Summary: Mr X complains the Council’s planning administration fees are unlawful. There is no evidence of fault by the Council in the way it made the decision.

The complaint

1. Mr X complains the Council has introduced a validation planning administration fee that does not have a legal basis. He says his clients are being charged additional, unavoidable fees which he considers are wrong.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended).

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How I considered this complaint

4. I have discussed the complaint with Mr X and considered the information he provided. I have made enquiries of the Council and considered the comments and documents it provided.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

6. Mr X who acts as an agent on behalf of planning applicants, complained to the Council when he received two letters regarding his clients’ applications. The Council said the applications were currently invalid and explained that they incurred an administration charge due to the additional time required to check resubmissions. It said if the applicant did not pay the administration fee where it had charged this, the Council would not review any resubmissions until it was paid.
7. The Council set out a list of documents and information it required. This included:
• the statutory planning application fee which the applicant had not paid.
• the administration fee of £60 in one case and £120 in the other. This was required according to the Council’s local validation list on applications which were submitted with errors or without the required documentation.
• Several other documents and items of information which the Council stated were required in accordance with its local validation list.
8. The Council said the applicant had 28 days to provide all the requested information. Failure to provide all the information would result in the application being withdrawn and disposed of.
9. Mr X told the Council he would advise his clients not to pay the administration fee because in his view it should not apply top up fees when the statutory fee should cover the full processing of the application.
10. The Council replied the administration charge was required before any revised documents could be checked. This was now a requirement for invalid applications according to its local validation list. It explained that:
• The aim of the charge was to encourage a positive change in behaviour to reduce the high rate of invalid applications.
• It was the applicant’s responsibility to ensure the details were accurate and correct.
• If an applicant did not provide the required information, it took staff time to resolve this.
• Invalid applications led to a cost at the expense of the local council taxpayer.
• It had introduced the administration charge in August 2023 under section 93 of the Local Government Act 2003 for cost recovery purposes and not for generating a profit.
• The charge formed part of its local validation list. Planning applications that were valid on submission would not incur an additional administration charge.
11. Mr X complained to the Council. He said:
• planning application fees were set by the Government and were inclusive of processing and handling of applications regardless of the information supplied.
• The Council said it could charge the administration fee under section 93 of the Local Government Act 2003. However, the Act says that authorities can charge for discretionary services that they do not have the duty to provide. It was the Council’s duty to ensure planning applications were valid.
• Section 93 also said that the person who receives the service has to agree to the provision. Mr X said his clients did not agree to the provision.
• His clients had now paid the fees under duress. He requested a refund.
• He would like to see the Council’s legal advice about introducing the fee and had made a Freedom of Information request for this.
• The Council’s checklist had many items it subjectively required. The Council had not properly considered the information it received with the application.
12. In its response to the complaint the Council explained the reasons for the two applications being invalid. It said Mr X had not stated which of the information requests the Council had not properly considered or which did not meet validation checklist criteria.
13. The Council noted Mr X said the charge was unlawful as he had not agreed to it. However, it said the charge was part of the published local validation list. The Council considered the charge had been agreed for the purposes of section 93 of the Act by the applicant submitting an application.
14. The Council said that applications were required to comply with the local validation list under The Town and Country Planning (Development Management Procedure) (England) Order 2015 (the DMPO). Article 11 (2) (e) of the DMPO sets out that the application must be submitted with the particulars or evidence required by the authority. The authority must publish a list of the requirements (the local validation list) before the application is made.
15. The Council said that its local validation list included the requirement to pay the administration fee. If Mr X refused to pay the administration fee for his clients, the application would remain invalid. It explained the correct procedure to challenge this outcome was to submit a notice in accordance with article 12 of the DMPO (validation disputes). The Council would then determine whether to validate or return the application.
16. Mr X’s clients had not disputed the Council’s decision using article 12 and had paid the statutory planning fee and the administration charge instead. On that basis the Council could not uphold his complaint.
17. Mr X complained further that:
• The Council’s invalidation letter did not refer to the dispute process according to article 12 of the DMPO.
• The Council’s validation checklist did not say how to avoid the administration charge.
• He did not agree with the existence of the charge itself, so the DMPO dispute process was not relevant.
• The Council letter did not provide any option other than to pay the charge.
• He considered the Council had no legal basis for the administration fee. The DMPO did not make any provision for a top up or validation fee. It referred to particulars or evidence which the Council may require on matters which are a material consideration.
• He noted the Council considered section 93 of the LGA applied. But he repeated his view that planning validation was not a discretionary service. Validation was part of processing planning applications.
• He had stated he did not agree with the charge on multiple occasions.
• The Council had refused to provide a copy of its legal advice regarding the matter. In his view it was a matter which was in the public interest.
18. The Council replied and did not uphold Mr X’s complaint. It said that:
• While it accepted its invalid letter did not make reference to article 12, Mr X, as an agent, should be aware of its provisions.
• Mr X had not challenged the invalid notification and had paid the administration fee.
• It repeated it considered by submitting an application, he was obliged to do so in accordance with the national and local validation list.
• It considered its validation list met the tests in the DMPO about reasonableness in regard to nature and scale and regarding matters it was reasonable to think would be a material consideration in determining the application.
• It noted both of the applications Mr X made had multiple reasons for being invalid including missing payment of the statutory fees.
19. In the Council’s response to our enquiries it stated that:
• It is the applicant’s duty to ensure an application is valid. The applicant should make themselves aware of planning regulations which state the application should be in line with both Local and National requirements. The statutory fee covers the administrative burdens of notifying residents, consultees, creating and logging the submission, assessing and determining the application.
• Where an applicant does not follow planning regulations, the Council could return the application (and the statutory fee). This then forces the applicant to resubmit the entire application again.
• The administration charge was for the additional work involved in guiding applicants where they had failed to meet the regulations and in reviewing amendments. It considered this was more helpful than simply returning invalid applications.
20. The Council has confirmed that since the administration charge was introduced it has charged 809 applicants out of 2317 planning applications it received. The Council has not received any appeals against the charge, and it does not have a record of the number of challenges raised regarding the charge.

Analysis

21. The Council considers section 93 of the LGA 2003 allows it to charge the administration fee as a discretionary charge. It has taken legal advice which it says supports its view.
22. I have considered whether there was fault in the Council’s decision-making process in introducing this charge. I considered the Council’s complaint responses, its explanations and the legal advice it obtained. There is no apparent evidence of fault here. The Council took account of relevant factors in making its decision to introduce the administration charge. As I explained in paragraph 2, where there is no apparent fault, we cannot question the decision.
23. Mr X disagrees with the Council’s interpretation of section 93. However, the Ombudsman cannot decide on whether the Council interpreted the law correctly. The courts are better placed to resolve any further disputes regarding the interpretation of section 93.
24. I note the Council explains the administration charge on its website under information “About Planning”. The Council explains the relevant required information in the local validation list and the circumstances when it will charge an administration fee.
25. I consider the Council has provided clear information about the charge and the reasons for it. I do not consider there is fault here.
26. Mr X complains the Council’s letters stating the applications were invalid did not include information about how an applicant can dispute the decision in accordance with article 12 of the DMPO.
27. I consider that while a planning agent may be aware of the process to challenge an invalid notice, many applicants may not know how they can dispute this. We expect Councils to be open and clear about policies and procedures, ensuring advice is clear, accurate and complete. In the circumstances, I do not consider this shortcoming is serious enough to make a formal finding of fault. I am also pleased to note the Council has agreed to make improvements around the provision of information about how to dispute invalid decisions, in its notification letters to planning applicants

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Final decision

28. I have not found fault by the Council. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman