The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s failure to determine his planning application. This is because there is not enough evidence of fault by the Council and we could not achieve any worthwhile outcome for Mr X. Mr X also had a right of appeal for the delay which it would have been reasonable for him to use.
The complaint
The complainant, Mr X, complains the Council has failed to determine his planning application. He says the delay has caused stress and cost his family tens of thousands of pounds.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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)) The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about: delay – usually over eight weeks – by an authority in deciding an application for planning permission a decision to refuse planning permission conditions placed on planning permission a planning enforcement notice.
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council validated Mr X’s planning application in 2021 but the application remains undetermined. Mr X has previously applied for planning permission but the Council refused his application. Mr X has appealed against this decision to the Planning Inspectorate and he is awaiting the Inspector’s decision.
The Council has progressed Mr X’s current application but confirms it will not issue a decision at this time. This is because it considers the appeal outcome is “a material consideration of significant weight” which needs to be resolved before it can decide the current application.
The Council’s approach is in accordance with Section 70B(3) of the Town and Country Planning Act 1990, which provides a power to decline to determine overlapping applications where the similar application is under consideration by the Secretary of State.
The Council’s view is a matter of professional judgement and given the similarities between the applications we cannot say its decision not to determine the application is irrational or perverse. We also cannot say the Council must issue a decision against the judgement of its officers and the lawful exercise of its powers to decline to determine the application.
In any event, because Mr X’s complaint concerns delay he could have challenged this by way of an appeal to the Planning Inspectorate on the grounds of non-determination. This is the remedy provided by legislation and it would have been reasonable for Mr X to use it in this case.
Final decision
We will not investigate this complaint. This is because Mr X had a right of appeal which it would have been reasonable for him to use. Further, there is not enough evidence of fault by the Council and we could not achieve any worthwhile outcome for Mr X.
Investigator's decision on behalf of the Ombudsman