Summary: We found some delay by the Council on Mrs Y’s complaint about its handling of her outline planning application. There was no outstanding injustice to her from the delay.

The complaint

1. Mrs Y complains about delay by the Council of its handling of her outline planning application for a single dwelling on land she owned and its failure to promptly:
1. prepare and reach a section 106 agreement for the provision of affordable housing contribution; and
2. tell her a section 106 agreement could not be enforced due to the lapse of outline planning consent for another parcel of land she had sold to a developer.
2. As a result, she lost the buyer of the land she wanted to sell, could not get consent because of a change in government guidance, and suffered a great deal of stress, all of which has affected her health.

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The Ombudsman’s role and powers

3. 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(1), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. 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)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have and have not investigated

7. I have not investigated any complaints Mrs Y may have about the Council failing to decide her planning application within the statutory eight weeks. This is because she had a right of appeal to the Planning Inspectorate about the failure. The Planning Inspectorate considers appeals on behalf of the Secretary of State for the Ministry of Housing, Communities and Local Government. In addition, I note she agreed with the Council to extend the deadline.

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How I considered this complaint

8. I considered evidence provided by Mrs Y, the notes I made of our telephone conversation, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered the Council’s response.

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What I found

Planning law

9. Outline planning permission establishes the acceptability of development, subject to later agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
10. An application for approval of details of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application.
11. The National Planning Policy Framework (NPPF) provides guidance for councils drawing up local development plans and is a material consideration in deciding applications.
12. Where the local development plan is silent, or the relevant policies are out of date, planning applications must be decided in accordance with a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the NPPF, or the NPPF indicates development should be restricted.
13. Most planning applications should be decided within eight weeks, although the time limit is 13 weeks for major applications. If the planning application has not been decided by the end of this period, and an extension has not been agreed in writing, the applicant can appeal to the Planning Inspectorate on behalf of the Secretary of State.
14. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract, that is legally binding on the parties signing it. They may be enforced at court.

What happened

15. Mrs Y owned land to the rear of her home. Over the years, this land was subdivided, and different planning applications were sent to the Council for consent. There were two main adjoining plots: Plot A (furthest from her property) and Plot B (closest to her property). Both belonged to Mrs Y and another family member.
16. The relevant planning applications were:

• Plot A: Application 1 was for outline consent for three dwellings and highway improvements. Mrs Y was the applicant. It was approved and subject to a section 106 agreement. The agreement was for a financial contribution from the owner towards affordable housing. This agreement was needed under the Council’s Local Plan as there were three or more dwellings. Outline planning consent usually expires after three years unless an applicant sends in details of reserved matters.

• Plot B: Application 2 was a full planning application for a single dwelling. Mrs Y was the applicant. A section 106 agreement was sought as this would have been the fourth dwelling on the land, taking account of Plot A.

Application 3 was an outline planning application for a self-build dwelling. Mrs Y was again the applicant. While under consideration, the Council decided a section 106 agreement was needed.

17. Mrs Y complained that by the time the Council identified consent on application 1 had expired, the government had changed the NPPF guidance. This meant she would not get consent for application 3 as instead of four dwellings across the two plots, there would just be one. This new NPPF brought in changes about housing density and plot sizes.
18. She sold the plots and the developer applied for, and got, consent for the building of a large number of dwellings on both.
19. I now examine what happened with application 3 that resulted in her withdrawing it.

Application 3

20. Mrs Y applied for planning consent for Plot B as she wanted consent for one dwelling. It was considered valid in July 2024 which meant the Council now had eight weeks to decide the application.
21. Neither she nor the Council were aware at the time that consent for application 1 would lapse the following month.
22. In September, the Council asked for more time to reach a decision on it. This was because it needed a section 106 legal agreement (the agreement) completing before it could make a decision on it. It sought the agreement to secure an affordable housing contribution.
23. At the end of the month, the Council asked Mrs Y’s solicitors for an undertaking (a binding promise that can be enforced at court) to meet its costs for drafting the agreement. It would not start work on such an agreement until it received it.
24. A few days later, in early October, her solicitors responded and raised a couple of queries.
25. Two weeks later, the solicitors chased the Council for a response. The following week, they chased again.
26. At the end of the month, the Council responded and again asked for the undertaking which was given the following day. The Council then sent the draft agreement to Mrs Y’s solicitors who approved it. They asked the Council to send a plan they needed to check. The signed agreement was sent back to the Council about two weeks later.
27. In November, the Council sent Mrs Y’s solicitors the plan for checking which was returned in early December. The Council approved it the same day. Mrs Y’s solicitors sent the Council the signed agreement
28. Later in December, following consultation by the government between July and December, revised NPPF guidance was issued. The changes in the NPPF meant her application was no longer acceptable.
29. In January 2025, the Council asked for a further extension of time to decide her application which Mrs Y agreed.
30. Around this time, the planning officer raised concerns about the application and explained them to Mrs Y. The concerns were because of the revised NPPF. The problem was the agreement could not now secure the affordable housing contribution because of the lapse of consent on application 1. The affordable housing contribution for the application did not meet the new NPPF test.
31. Mrs Y withdrew application 3.
32. In response to my enquiries, the Council accepted while the deadline for deciding the application was eight weeks, there were clear reasons why it took five months. Had it made a quick decision, this may have been to refuse it as there were various issues it would not have resolved sooner. It also confirmed the agreement should not have been secured but neither it, nor Mrs Y’s solicitor, realised consent for application 1 had lapsed.
33. The Council agreed to refund her application fee and legal fees.

My findings

34. I found the following on this complaint:
1. Mrs Y had the right to appeal the Council’s failure to decide her application within eight weeks. She chose not to do so. Instead, she agreed to extend the deadline. I have, therefore, only considered events following the expiry of the eight-week deadline.
2. At the root of her complaint was her belief the problem with application 3 could have been avoided but for the delays. She believed that because of the delays, the application was not considered and approved before the change in the NPPF and the discovery of the lapse of consent.
3. The key issues raised by Mrs Y were:

• Delays: I am satisfied that after she agreed to the extension, the evidence showed both the Council and Mrs Y’s solicitors were responsible for delays. For example, there were delays by the Council in October 2024 when the solicitors chased it for a response. Her solicitors delayed giving the costs undertaking the Council asked for and were slow to return the signed agreement. I also note that Mrs Y agreed to the Council’s requests to extend the deadline within which it could decide the application.
• Lapse in consent: Neither the Council, Mrs Y who had applied for and obtained the consent on application 1, or her solicitors identified this lapse either before it happened or at the time it happened. Had they done so, it was unlikely to have raised any concern with the application as the NPPF new guidance had not been introduced. This was only introduced five months later with no warning about its issue date.

When Mrs Y sent her application, consent on application 1 only had one month left before it lapsed although the significance of this was not foreseeable until the new NPPF was issued. After receiving pre-application advice, she decided not to wait for an ecologist to become available, but to submit application 3. Even if she had waited for one, events were likely to have resulted in the same outcome. This was because the lack of an available ecologist was likely to have delayed consideration of application 3.

• Revised NPPF: The issue date was not given in advance. This meant it would not have been a factor either the Council or Mrs Y’s solicitors could have taken into account of earlier.
4. Although there were some delays by the Council, on balance, I am satisfied there was no outstanding injustice to Mrs Y because: both parties shared some responsibility for delays; the delays were not significant in themselves; there was no guarantee she would have received planning consent for application 3; had she decided to wait for an ecologist’s advice, the outcome was likely to have been the same anyway when the Council decided application 3. This was because it would not have been decided before the issuing of the NPPF: she has already had her legal fees and application fee refunded.

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Decision

35. I found some fault on Mrs Y’s complaint against the Council but there was no outstanding injustice to her.

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Investigator's decision on behalf of the Ombudsman