Summary: Mr X complained the Council gave incorrect advice to submit a discharge of condition application in order to agree the methodology for a heritage report required under a planning condition. The Council gave incorrect advice meaning Mr X incurred avoidable expenses and caused delay. The Council agrees to reimburse the application fee as well as making a symbolic payment to acknowledge his frustration.

The complaint

1. Mr X complains the Council gave incorrect advice to submit a discharge of condition application in order to agree the methodology for a heritage report required under a planning condition.
2. Mr X says that the incorrect advice caused delay and avoidable expenses.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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 considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Historic England reports

7. Historic England produces guidance setting out the process of investigating and recording historic building for the purpose of historical understanding. The guidance provides practical advice on surveying, photography and report writing for those undertaking the recording. There are four main levels of record ranging from Level 1, comprising photographs and brief notes, to Level 4, containing a full historical and architectural analysis, supported by a comprehensive drawn and photographic record.

Key facts

8. This section sets out the key events in this case and is not intended to be a detailed chronology.
9. The Council granted planning permission for the rebuilding of a property and conversion of an existing outbuilding. The approval notice included a condition which required Mr X to undertake a level 3 historic building recording prior to the commencement of the development.
10. Mr X’s agent, Ms Z, contacted the Council by email with a scheme of investigation for the building recording. The email included details of the methodology that would be used for the recording. The Council replied three days later saying that to a discharge of condition would need to be submitted for it to consider any further information.
11. Ms Z made further contact to clarify that she was seeking confirmation of the methodology and asked for the contact details of the relevant officer. The Council responded saying “to consider any further information to discharge conditions this would need a discharge of conditions application.” Ms Z therefore submitted a discharge of conditions application.
12. Six weeks later, Ms Z sent a deemed discharge noted to the Council as no response had been received. The Council responded 11 days later, exactly eight weeks after the application was submitted, saying it could not discharge the condition as the full survey had not been provided. The Council also said that a partial discharge was not required and confirmed the methodology was acceptable.
13. Mr X made a formal complaint about the Council’s delays and misinformation. He asked for a refund of the application fee and for the Council to waive the fee when he submitted the next application. In its response, the Council said it was continuing to operate in the face of unprecedented challenges resulting from a significant increase in planning application submissions and a national shortage of qualified resources. It says there was a significant backlog of undetermined planning applications and workloads were high. It went on to say that Mr X’s application was complex, was the subject of a change in planning agent and required the submission of a range of supporting reports and input from both internal and external consultees.
14. The Council said there appeared to be some misunderstanding between Ms Z and the case officer, for which it apologised. It said it did not offer pre-application advice for the discharge of planning conditions and so would not have provided any advice on the methodology without a discharge of condition application, and so did not agree that the fee for a new application should be waived. It said it was unable to uphold Mr X’s complaint.
15. Mr X contacted the Council on the same day to escalate his complaint. He said the Council advised his agent to submit a discharge of condition application to agree on the methodology but then said a partial discharge was not required. He said this misinformation caused more than eight weeks delay as well as unnecessary cost and frustration. He said that even though the Council acknowledged this fault and apologised, it did not uphold his complaint.
16. In the response, the Council said it agreed there was some confusion and misunderstanding of what was required but said it would not seek to blame anyone in the exchange. It felt this was a fair response and why the stage one complaint was not upheld. It said the Council continued to face challenges but would prioritise the resubmitted discharge of condition application.

Analysis

17. The information provided shows that Ms Z made contact with the Council’s planning department regarding the heritage report that was required by a condition on the planning approval. She exchanged emails with a senior planning officer. In one email dated 15 October, she expressed her confusion and queried whether an application had been submitted by Mr X. She explained her organisation would be undertaking the recording and that normally they would get informal approval for the works to go ahead. She clearly said “this is what I am trying to achieve, not to formally discharge any conditions. Apologies if this was not clear.” The Council’s response was only to say a discharge of condition application would need to be made for the Council to consider any further information.
18. I do not consider the above response from the Council was unclear. Ms Z asked for guidance about the works yet to be undertaken and the Council said it could not consider anything without a discharge of condition application. The Council gave an instruction to Ms Z which she followed only then to be told this was not an appropriate action. On the basis of the email exchanges, I consider the Council gave incorrect advice and that this amounts to fault. I consider the Council should refund the fee for the discharge of condition application that it incorrectly requested.
19. I am also recommending a symbolic payment to recognise Mr X’s avoidable time and trouble in pursing this matter because the Council did not fully accept its fault as part of the complaint process.

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Action

20. To remedy the injustice caused to Mr X as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Reimburse the cost of the discharge of condition application; and
• Make Mr X a symbolic payment of £100 to recognise his frustration and avoidable time and trouble in pursuing the complaint.
21. The Council should provide us with evidence it has complied with the above actions.

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Decision

22. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman