Summary: X complained about the Council’s decision to charge a full planning application fee for their development proposal. We found no fault in the way the Council made its planning decision.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council has refused to refund an overpayment of a planning fee, which was paid on the advice of a planning officer.
3. X said their application should have been treated as a householder application. X said they were led to believe they could pay the higher fee for a full application, then ask for a review after a planning decision was made.
4. X would like an apology and a refund of the difference between the two fees.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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

7. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, and an email exchange between the Council and X’s planning agent.
8. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning application validation and fees

9. Before councils consider planning applications, they must check what information they are likely to need. When they are satisfied they have the information they need to consider an application, they ‘validate’ the application and the planning process begins.
10. The information that must be provided is:
• a completed application on a standard form;
• plans to show the location of the site; and
• the correct fee.
11. Regulations set out fees for different types of planning application. For ‘full’ planning applications, the fees vary depending on the type of development and the number of dwellings etc. ‘Householder’ applications are charged at a reduced rate and are for alterations and extensions to a single dwelling house and works within the boundary. Details about charging regulations and fees can be found on the government planning portal website here.

Planning law and guidance

12. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
13. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
14. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
15. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
16. Planning authorities often have to decide whether developments within houses and the land around houses are ‘incidental’ or ‘ancillary’ to the use of the dwelling. In general terms, an ancillary use is anything an individual might normally do in a dwelling, such as to eat, sleep, relax, bathe etc. An incidental use is everything else, and includes things like storage buildings, swimming pools, gyms, hobby/craft spaces.

What happened

17. X employed an agent to deal with their planning application. They proposed to build an annexe containing two units to be used in association with X’s house. The agent asked for the application to be treated as a householder application.
18. The Council considered the application was invalid. This was because the proposal was outside the definition of a householder application as the proposal was to create two separate self-contained dwellings. The Council explained that a full application for two dwellings should be completed.
19. The agent disagreed and wrote back to the Council, explaining the purpose of the annexe was to accommodate a family member and their carer, and that a restrictive covenant prevented outbuildings from being used or sold as separate dwellings.
20. The Council responded to repeat its view that the proposal was not a householder application, as the works were neither incidental or ancillary to the main dwelling and the two units were separated from it and self-contained.
21. The agent responded to say they could make changes to the design which might make the development incidental to the host dwelling.
22. The Council suggested the fee should be paid so the application could be validated, and the issue about whether this was an appropriate form of development would be decided during the planning process.
23. The fee was paid, the application was validated, considered by a planning case officer, and approved subject to planning conditions. One of the conditions restricted the use of the accommodation so it could only be used in association with and ancillary to the occupation of the host dwelling.

My findings

24. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
25. Before it validated X’s planning application it considered the charging regulations and explained its view to X’s agent.
26. The Council has followed the decision-making process we would expect and so I found no fault in the way it made its decision.
27. X’s agent disagrees with the way the Council has interpreted the regulations, but we are not a court and cannot determine the law.
28. X said they were misled by an officer who told them they could pay the full application fee and then challenge the validation decision to recover the difference between the two fee rates. I saw no evidence to show X was misled by an officer.

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Final decision

29. I completed my investigation as I found no fault in the way the Council made its planning decision.

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Investigator's decision on behalf of the Ombudsman