Summary: X complained they were misled by the Council when they submitted a request for pre-application advice before making their planning application to demolish a barn and build a new house. X said that, because of this, they incurred greater costs which the Council should pay. We found no fault in the way the Council has acted.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council misled them and their agent when its officer (Officer Y) advised the best way forward was to submit a pre-application advice form, so that an agreeable position could be reached before a new planning application was submitted.
3. X said they incurred over £800 of additional costs before being told that their proposal could not be supported.

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The Ombudsman’s role and powers

4. 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

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and discussed what had happened with a planning officer (Officer Y). I considered documents from its planning files, including earlier applications, a planning inspector’s decision on X’s appeal application, the chain of emails submitted by X, development proposal plans and the case officer reports.
6. I gave the Council and X an opportunity to comment on an earlier draft of this decision.

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What I found

Planning law and guidance

Pre-application advice

7. The government encourages councils to engage with applicants, before they submit applications. In its National Planning Policy Framework, the government says pre-application advice can help resolve problems early, and lead to better and more timely planning decisions.
8. Councils can charge for their pre-application advice service and specify what information they will need to provide that advice.

Planning applications

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. 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.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Permitted development

13. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
14. Some permitted development proposals for development or changes of use require an application so the Council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway.

Appeals

15. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

16. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

What happened

Planning history of the site

17. X owns land on which there is an agricultural building (a small barn). The site has a long and complicated planning history, but for the purposes of this investigation, the main events are as follows:
• Application 1 - About a decade ago, the Council refused a planning application for the retention of a large extension to the barn. X appealed against the refusal, and I will refer to this appeal as ‘Appeal Decision 1’.
• Appeal decision 1 – X appealed to the Planning Inspectorate, and an inspector allowed the development. X had the opportunity to begin development of Appeal Decision 1 by commencing work approved in the plans. In the correspondence the planning officers and agent refer to the process where commencement happens as ‘part-implementation’. If this had happened, the permission for the large extension would be ‘extant’, which means it would still be lawful to build it. If not commenced or part-implemented, the permission under Appeal Decision 1 would have lapsed already, so it would not be lawful to rely on the approval.
• Application 2 – More than 2 years ago, X applied for a smaller extension to the barn. The Council approved this application. A planning condition required that development should begin within 3 years from the date of grant. The time limit under the condition will end in the early part of 2026.
• Application 3 – In the early part of 2024, X applied for permission to demolish the barn and build a house in the centre of the site. The Council refused this application in March 2024. There followed a period of discussions between X, X’s agent and the Council. In June 2024, X requested pre-application advice. X said they did this because Officer Y sent them an email saying this could lead to positive dialogue and an agreeable submission prior to a fresh planning application. In July 2024, X appealed against the refusal of Application 3. I will refer to this appeal as Appeal Decision 2.
• Appeal Decision 2 – X appealed against the Council’s refusal of Application 3. The inspector refused this application because the site was not a suitable location for new housing. The inspector recognised X’s suggestion they could implement Application 1 because they had created a vehicle access shown in the plans. However, the inspector pointed to the Council’s view that Application 1 had not been implemented, because the vehicle access already existed when Application 1 was allowed on appeal. In the appeal decision, the inspector noted that, during the appeal, X had not disputed the Council’s position on this point.

Correspondence between X, X’s agent and the Council

18. X provided copies of emails which they said showed a Council officer had misled them and caused unnecessary costs of over £800. The main emails include the following information:
• Email 1 - from X to the Council – Following the refusal of Application 3, X wrote to say their agent ‘aims to replace an extant planning permission with a much more sustainable, visually appealing and attractive new build.’
• Email 2 – Officer Y responded to X on behalf of the Council. Officer Y said that Application 3 was for demolition and a new build, not a conversion and extension of the barn, and this was why it was refused. Officer Y advised that X’s best option would be to appeal to the planning inspector. Officer Y went on to say the following. ‘Failing that, you have an extant permission (which I believe is claimed to have been commenced?), so that option is also open to you.’
• Email 3 – X’s agent sent an email to Officer Y. The agent asked questions and made comments about Application 3. They referred to a consent for a dwelling which is already implementable. They ask whether there is a ‘blanket ban on replacement consents’. They also ask whether the Council is saying a replacement dwelling on the same or close to the same footprint of the extant permission would be acceptable, because if so, this possibility could be explored further.
• Email 4 – Officer Y sent an email to X. Officer Y said the Council has already responded to the agent’s comments about Application 3. Officer Y said that X’s agent raised some interesting points which require consideration and then went on to say the best way forward would be to examine the reasons for refusal and respond to them positively with an alternative proposal through the pre-application advice service. Officer Y said that through the pre-application process ‘… we can have a positive dialogue and hopefully arrive at a position where all can be in agreement prior to the submission of a further planning application’.
• Email 5 – Officer Y sent an email to X. This happened after X and their agent submitted a pre-application proposal to demolish the barn and replace it with a new house. Officer Y responded to say it is possible that Email 4 left some scope for misunderstanding but went on to say the existing consent, which was claimed to be ‘part-implemented’ (Appeal Decision 1), was not lawful because the vehicle access works pre-dated the inspector’s decision.

Officer’s Y explanation

19. I spoke to Officer Y about what had happened. Officer Y said:
• Throughout the correspondence, Officer Y was clear about the Council’s position, which was that demolition of the barn and a new build on the site would not be supported.
• X and their agent had claimed that Appeal Decision 1 was part-implemented. Officer Y had accepted this claim until a colleague had researched aerial photos and informed them, much later in the year, that this was not correct.
• They accept that Email 4 could have been written more clearly, but it was not unreasonable to have accepted X’s claim that the larger extension approved under Appeal Decision 1 was a viable alternative to Application 3. If X’s claim had been correct, a larger extension than agreed in Application 2 might have been possible, and it was this possibility that could have been explored through pre-application discussions, so avoiding the need for a further appeal to the Planning Inspectorate.

My findings

20. I have found no evidence that shows Officer Y misled X or X’s agent. I accept that Email 4 could have been clearer, and I accept X’s explanation of how they had interpreted it.
21. However, I would need good evidence to uphold this complaint, and a less than perfect paragraph in one of a series of emails does not pass the threshold of fault. If this paragraph had been written in a formal decision or pre-application advice response, my view might be different, but the level of attention, care and precision expected in email exchanges is not so onerous. In these circumstances, we need to consider the correspondence as a whole, alongside formal decisions. In my view the Council’s position throughout is clear enough. The Council had not at any time given clear support to the type of development it had refused in its decision on Application 3.
22. I find no fault in the way the Council acted.

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Decision

23. I find no fault and so completed my investigation.

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Investigator's decision on behalf of the Ombudsman