Summary: Miss X complained about the Council’s handling of her planning application. She said she submitted a second application, incurring added costs for reports and assessments, on the Council’s advice, but it would not succeed. Miss X said the Council has accepted this but has only offered to refund some costs. Miss X said the Council fault distressed her and impacted her financially. There was fault in the way the Council gave Miss X incorrect information, causing her additional costs. The Council has agreed to apologise and repay the costs it agreed Miss X incurred due to the Council fault.

The complaint

1. Miss X complained about the Council’s handling of her planning application. She said she submitted a second application, incurring added costs for reports and assessments, on the Council’s advice, but it would not succeed. Miss X said the Council has accepted this but has only offered to refund some costs. Miss X said the Council fault distressed her and impacted her financially.

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The Ombudsman’s role and powers

2. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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 read Miss X’s complaint and spoke to her about it on the phone.
5. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

9. Planning considerations do not include things like:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

10. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
11. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
12. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
13. Government statements of planning policy are material considerations.
14. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
15. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

What happened

16. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
17. Miss X lives in a flood zone. She submitted an application to build another house next to her home in October 2022.
18. The Environment Agency objected to the plan in November 2022.
19. Miss X submitted more information in February 2023. The Environment Agency maintained its objection.
20. In April 2023, the Council advised Miss X to withdraw her application. The Council said Miss X may wish to submit another application to address the Environment Agencies concerns. The Council said to overcome the objection, Miss X should submit a flood risk assessment and modelling report, addressing concerns.
21. Miss X asked a contractor to quote for the flood risk assessment. The quote totalled £9,360 for hydraulic modelling and £3,240 for the risk assessment.
22. Miss X withdrew the application in May 2023. At the end of May 2023, she paid an invoice totalling £4,680 as a “50% upfront payment”. Miss X stated this was for the hydraulic modelling.
23. In October 2023, Miss X paid an invoice for £4,500 for “professional services rendered and expenses incurred in connection with the hydraulic modelling and report”. The invoice had the same project code as the “50% upfront payment”.
24. In December 2023, Miss X paid an architect invoice, and a “final flood risk assessment”. Two days later she submitted the planning application with the reports.
25. In March 2024, the Council told Miss X, the Environment Agency objected to the application. The Council told Miss X it did not think the application would pass its sequential test.
26. Miss X submitted more information in April 2024.
27. In May 2024, the Council stated the application would not pass the sequential test.
28. Miss X complained to the Council at the end of May 2024. She complained the Council told her to withdraw the application, complete a risk assessment and hydraulic modelling and submit a new application. Miss X said she did this, but the Council knew it would not pass the sequential test. Miss X said she felt the Council should repay the costs as it would not approve the application, even with the reports.
29. The Council responded to the complaint in June 2024. The response accepted some communication was not clear. The Council stated, “given the fundamental concerns in relation to the sequential test, I accept this was not helpful advice and following on from this you incurred further expenses to address matters raised”. The Council apologised and offered to refund the hydraulic modelling. The Council offered to refund Miss X £4,500. The Council said it would not refund the risk assessment as this was needed for planning applications.
30. The next day Miss X contacted the Council to ask why it was only offering to refund half the hydraulic modelling cost. Miss X stated she had paid £9,180 over two invoices for the hydraulic modelling. Miss X repeated she would not have completed the modelling reports if the Council had not advised her too wrongly. Miss X asked the Council to escalate her complaint to stage two.
31. At the start of July 2024, Miss X sent confirmation from the contractor she paid for the modelling work over two invoices. The confirmation explained the final payment was reduced as they did not need to simulate 20-year and 50-year flood events.
32. The Council issued its stage two response in July 2024. The response explained the offer of £4,500 was a final offer. The Council apologised for the unhelpful advice and extra expense Miss X incurred but felt the offer was reasonable.
33. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to refund the hydraulic modelling cost.
34. Miss X withdrew her second application in September 2024.
35. In response to my enquiries the Council stated Miss X did incur extra cost for the hydraulic modelling report as the result of advice from the Council. It considered this extra cost to be £4,500.

My findings

36. The Council has accepted Miss X incurred extra costs because of advice it gave her. The quote, information from the contractor and two invoices with the same reference number show the works totaled £9,180.
37. The Council considered the invoices, and said the hydraulic modelling was £4,500 and offered to refund this.
38. The Council has given no evidence why it did not consider the upfront payment, of £4,680, part of the hydraulic modelling.
39. The evidence shows the cost of the hydraulic modelling report totalled £9,180. This is shown in the quote, communication from the contractor and the two invoices had the same reference number. The Council agreed to refund the modelling, but the offer was only for half of this cost. The Council should repay Miss X for the modelling as it said it should.

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Agreed action

40. To remedy the outstanding injustice caused to Miss X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Miss X for the fault identified in this case. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Repay Miss X the full cost of the hydraulic modelling report, it agreed to in its complaint response, totalling £9,180.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman