Summary: We will not investigate this complaint about incorrect pre-application advice given to Mr X by the Council. This is because fault by the Council did not cause him injustice.

The complaint

1. Mr X complains he relied on incorrect pre-application advice from the Council and that if he had been given the correct advice he would not have proceeded with his application and incurred the costs he did.

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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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• 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; or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

3. I considered information provided by the complainant’s representative and the Council, including its response to the complaint and details of the disclaimer it uses in giving pre-application advice.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. In responding to Mr X’s complaint about this matter, the Council acknowledged there was a difference between the analysis and conclusion reached during the pre-application advice stage where the officer indicated they would be likely to support the proposal and the planning application stage where permission was refused.
6. The Council upheld this part of the complaint and apologised but it declined to compensate Mr X for the costs he had incurred in the preparation and submission of his planning application and referred him to the caveats it had included with its advice.
7. The caveat at the beginning of the advice given to Mr X stated: This advice is given in response to your request for pre-application advice for the above development proposal and is based on the information submitted. Whilst Council officers endeavour to give the best advice, it should be recognised that all applications are subject to formal consultation procedures to enable third parties and statutory consultees to make representations. This process may introduce new material considerations. Moreover, the policies and guidance against which applications are assessed may change over time. I therefore reserve the right to alter the opinion given should new material issues come to light in future. Moreover, the advice given in this letter is that of the named officer and does not bind the Council in determining any subsequent planning application that may be submitted.
8. This was followed at the end of the advice with the following disclaimer: Although pre-application advice is offered on a without prejudice basis, we will ensure that it is as reliable as possible. It will be based on the available information and policies at that time but will not be any guarantee that any subsequent application will result in a particular decision and will not be binding on the Council in any way. Our opinion may change during the formal application process as a result of views of consultees and other interested parties such as neighbouring residents. The final decision may also be made by Planning Committee, rather than by officers and it is possible that they may reach a different view.
9. While Mr X’s representative has argued there was no new information, guidance or policy introduced and that no consultation took place, the disclaimer advises that the pre-application advice given was offered without prejudice and was not binding on the Council in any way. As this is the case, it cannot be said that fault by the Council caused Mr X injustice and we will not investigate the complaint.

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Final decision

10. We will not investigate Mr X’s complaint because fault by the Council did not cause him injustice.

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Investigator's decision on behalf of the Ombudsman