Summary: We will not investigate Mr X’s complaint about the Council’s planning decision. This is mostly because it would have been reasonable for Mr X to exercise his appeal rights.

The complaint

1. Mr X complains about conditions the Council added to a grant planning permission which restrict the use of his property. He says the restrictions have caused distress to him and his family.
2. Mr X says he missed the deadline to appeal the decision and the Council has refused to consider his appeal because it is out of time. He is also unhappy the Council has started enforcement action against him.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. We also cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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How I considered this complaint

6. I considered information provided by Mr X and the Council.
7. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council granted planning permission for Mr X to develop his property several years ago. The planning permission contained conditions that restrict the use of his property, which Mr X does not believe are necessary or proportionate. He complained to the Council but the Council told him he should have appealed against the original decision to the Planning Inspectorate.
9. Mr X says he was unable to appeal in time because he and his family were unwell with Covid-19 for one month. He asked the Council to extend the time limit for making an appeal based on those grounds but it refused. Mr X believes this is unfair and wants a further opportunity to appeal against the decision.
10. The Council has no authority to change the time limit for making an appeal as it is not the appeal body for planning decisions. The Planning Inspectorate deals with these appeals and the timescales for making an appeal are set out in law. An appeal against the conditions attached to a grant of permission on a householder planning application must be made within 6 months from the date on the decision notice. If an appeal is not received within the time limit, the appeal will not be accepted.
11. It is not for us to determine whether the Council was right to impose the conditions it did on the planning permission for Mr X’s property; this is a matter for the appeals process and, specifically, the Planning Inspectorate.
12. While I acknowledge Mr X and his family had a period of illness, he still had several months within which to submit an appeal. I consider it would have been reasonable for Mr X to have used his appeal right during that time, and therefore I see no reason to exercise our discretion to investigate this aspect of Mr X’s complaint.
13. Whilst Mr X has missed his opportunity to appeal the planning decision, it remains open to him to make an application to vary or remove the condition. Any decision to refuse that application would carry a new right of appeal. I consider this would be the more appropriate way for Mr X to address his outstanding concerns as we do not have the power to change or overturn the original planning decision.

Enforcement action

14. The Council has issued Mr X with a Breach of Condition Notice (BCN) for failing to comply with the planning condition. It is currently considering whether to take further enforcement action. Mr X believes the Council was wrong to take any enforcement action against him as he disagrees with the condition and believes it should be varied or removed.
15. There is not enough evidence of fault in the Council’s decision to issue the BCN as there is an accepted breach of the condition. I appreciate Mr X disputes the condition but we cannot question whether it is justified as set out above.
16. In the event Mr X decides not to comply with the BCN and remedy the breach the Council will consider whether to prosecute Mr X for failing to comply. If it does, any complaint about this action would fall outside our jurisdiction in accordance with the exclusion in paragraph 5.
17. Mr X should however keep in mind that if he successfully applies to vary the planning condition, and the Council or Planning Inspectorate approves the change, this could remove the need for further enforcement action.

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Final decision

18. We will not investigate Mr X’s complaint because it would have been reasonable for Mr X to appeal against the condition set out in the planning permission. We cannot determine whether the Council was right to include the condition and have no powers to remove it. If Mr X wants to vary the condition he may make a new application to the Council and appeal against any decision to refuse it.

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Investigator's decision on behalf of the Ombudsman