The Ombudsman's final decision
Summary: We cannot investigate Mr and Mrs X’s complaint about the Council’s planning process leading to officers’ refusal of their application, and will not investigate how the Council dealt with their pre-application planning advice. Mr and Mrs X have used their right of appeal to the Planning Inspectorate which takes the Council’s planning process outside our jurisdiction. The claimed effect of the pre-application planning advice forms part of that appeal and investigation of that process would not now lead to a different outcome.
The complaint
Mr and Mrs X applied for planning permission to develop their home. Their application was refused permission in 2022. Mr and Mrs X complain the Council: failed to give them accurate and timely pre-application planning advice, or keep records of the advice given to them; the problems with the pre-application advice affected the Council’s; made numerous further errors during the planning process.
Mr and Mrs X say the Council’s actions have cost them time and caused them avoidable trouble during the planning process. They say they have incurred a financial loss of £5,000 in planning services alone. Mr and Mrs X want: a financial remedy including the return of their planning fees and costs of their development’s re-design; and a financial remedy for their time and trouble; or the Council to help them redesign the development at its expense within six months; the Ombudsman to write a letter of support for their ongoing appeal to the Planning Inspectorate; the Council to return to using planning committees to make its decisions; the Council to always do site visits for every planning application; the Council to engage with applicants and discuss applications with applicants when the decision goes against the Parish Council or local support.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended) 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.
We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Mr and Mrs X, and the Ombudsman’s Assessment Code.
My assessment
Mr and Mrs X have exercised their right of appeal by referring the Council’s refusal of their application to the Planning Inspectorate. The Inspectorate is an expert body whose decisions are binding on the Council and which take precedence over an Ombudsman view on planning decisions. It is now for the Inspectorate to consider their application afresh and decide whether it is acceptable in planning terms, taking into account the issues it considers relevant. We cannot intervene in that process. Mr and Mrs X’s Inspectorate appeal takes all matters relating to the planning process once the application was submitted outside our jurisdiction, and we cannot investigate it.
Mr and Mrs X’s complaint raises concerns about how the Council handled the application and the conduct of officers during the planning process. We recognise the Inspectorate appeal may not consider Mr and Mrs X’s concerns about the Council officers’ service to them during the planning process. However, the courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. The relevant case is R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916). The principle set down in this judgement applies to situations where a complainant has used a formal right of appeal other than through court proceedings, including an Inspectorate appeal. This limitation on our jurisdiction applies even if the appeal did not or could not provide a complete remedy for all the injustice claimed. So we cannot investigate the Council’s actions in the planning matter because Mr and Mr X have used his formal PINS appeal right.
Mr and Mrs X complain of delays and errors in the Council’s pre-planning advice process. They say the errors in the pre-application report affected the refusal decision for the planning application because the officer who made the formal decision to refuse their application did not have the correct information before them. Any effect of the pre-application advice on the Council’s planning decision is a matter for the Inspectorate to determine, as it forms part of Mr and Mrs X’s appeal. Given how the planning matters have moved on since the pre-application advice, to the Council’s planning refusal and Mr and Mrs X’s Inspectorate appeal, there would be no practical planning benefit to us investigating that part of the complaint now. The Council has offered to reimburse their pre-application advice fee or a fresh round of advice for any further application. Investigation by us into this part of the complaint would not now result in a different outcome.
Final decision
We will not investigate Mr and Mrs X’s complaint because: they have used their appeal right to the Planning Inspectorate which takes all of the planning application process outside our jurisdiction; and the planning advice issue forms part of their Inspectorate appeal so we will not investigate where a matter is before another body for it to make a decision; and investigation of the Council’s pre-application process would not now lead to a different outcome.
Investigator's decision on behalf of the Ombudsman