Summary: We will not investigate this complaint about the Council refusing the complainant’s planning application after a 4-year delay, and despite it previously providing positive pre-application advice. There is insufficient evidence of fault in the pre-application advice given by the Council, it is reasonable to expect the complainant to have used his rights of appeal to the Planning Inspector, and we are satisfied with the action the Council has proposed in response to the complaint.

The complaint

1. Mr X complains the Council refused his planning application after a 4-year delay, and despite it previously providing positive pre-application advice about the proposal.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we are satisfied with the action the Council has already taken or proposed to take.

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

4. In addition, the law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended)
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector can consider appeals about:

• Delay – usually over eight weeks – by an authority in deciding an application for planning permission.
• A decision to refuse planning permission.

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How I considered this complaint

6. I considered information provided by Mr X and the Council, which included the pre-application advice and the Stage 2 complaint response.
7. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. I can appreciate why Mr X was disappointed when his application was refused, after receiving generally positive pre-application advice. However, the advice contained a caveat/disclaimer that it was an informal opinion which is not binding on any future application, particularly as unforeseen issues can arise and policies/guidance are subject to change over time.
9. Given this caveat, and that the advice was given 4 years before the application was determined, we are unlikely to conclude the Council acted with fault in the advice it gave, so we will not investigate this aspect of the complaint.
10. And, with reference to paragraphs 4 and 5 above, if Mr X was unhappy with the time it was taking to determine his application, it seems reasonable to expect him to have used his right of appeal to the Planning Inspector for non-determination. Similarly, if Mr X disagreed with the reasons why his application was eventually refused, I see no good reasons why he should not be expected to have used his right of appeal.
11. Finally, the Council has offered to work with Mr X to ensure he obtains a refund for the cost of phosphate credits he purchased whilst his planning application was being determined. I consider this to be a satisfactory way to address this part of the complaint, so we will not pursue it further.

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Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the pre-application advice given by the Council, it is reasonable to expect him to have used his rights of appeal to the Planning Inspector, and we are satisfied with the action the Council has proposed in response to the complaint.

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Investigator's decision on behalf of the Ombudsman