The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s decisions on his planning applications for a former military site. It was reasonable for him to use his appeal to the Planning Inspectorate if he disagreed with the Council’s planning decisions. Mr X’s complaint about the Council preventing him using his Inspectorate appeal in 2019 is late, there are no good grounds to investigate it now, and investigation would not achieve a different outcome. It was not fault for the Council to not provide Mr X with alternative development proposals for his land.
The complaint
Mr X and his wife Mrs X own a woodland site containing four air-raid shelters, previously in military use. They have been trying to get planning permission to develop the site for over five years. Mr X complains the Council: has been biased, unhelpful and negative when dealing with his planning applications and development proposals for the site; has failed to confirm the land use classification of the site; prevented him from using his Planning Inspectorate appeal in 2019; blocked the development plans while not offering an alternative.
Mr and Mrs X live abroad and say the lack of planning permission has meant they have not been able to use the site on UK visits. Mr X also says the Council’s actions prevented him and his wife from securing the future of the site’s rare heritage buildings. Mr X wants the Council to answer his questions about the planning status and categorisation of the site, for officers to act in a professional, unbiased manner, and help him find a way forward.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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: there is not enough evidence of fault to justify investigating; or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information from Mr X, and the Ombudsman’s Assessment Code.
My assessment
At the core of Mr X’s complaint is a disagreement between him and the Council’s planning officers about the types of acceptable development on the land he and his wife own. Mr X has submitted applications for developments he wants and considers should be permitted; the Council has disagreed and refused the applications. The Ombudsman cannot resolve that disagreement. Mr and Mrs X had rights of appeal to the Planning Inspectorate against each refusal. That appeal provides the appropriate process for applicants such as Mr and Mrs X to challenge the Council’s decisions on the applications and resolve the planning disagreement. Where someone has an alternative right of appeal to the Inspectorate, we will not normally investigate. The Inspectorate would determine whether Mr and Mrs X’s proposals are acceptable in planning terms, or dismiss the appeal, giving its planning reasons. If Mr X believes the Council is wrong in its categorisation of the land, or any other material planning issue which may have a bearing on its decisions on his applications, the way for him to challenge that was by using his Inspectorate appeal. It would have been reasonable for him to use that appeal as it is the route through which he could pursue the permission he wants, and clarify planning questions he has about the status of his land.
We may investigate a complaint from a planning applicant if they have been somehow prevented by a council from using their appeal to the Inspectorate. Mr X says the Council did this after refusing one of his applications in 2019, by asking him for more information. But we will only usually investigate complaints where the complainant has brought the matters complained of to us within 12 months of them becoming aware of those matters. Mr X would have known about the events with the Council after it refused the 2019 application. He has complained to us in August 2022 so his complaint on this issue is late. We would only investigate a late complaint where there are good reasons to do so. There are no good reasons here. I say this because Mr X and his wife have made planning applications after 2019, giving them further Inspectorate appeals to use when the Council refused them. So the planning situation has moved on and there would be no different outcome we could now achieve by investigating this 2019 issue.
Mr X says the Council has failed to suggest alternatives to his development proposals for his land. He wants the Council to help and advise him on the application he should make. Applicants can seek pre-application advice from some councils. The Council provided this to Mr X on at least one application. Mr X has also had the Council’s decisions explaining why they consider his applications to be unacceptable. This is information he may wish to use to influence any future applications. But when determining an application as submitted, it is not the role of councils to offer an alternative set of development proposals that officers would find acceptable. The planning process requires Mr X as the applicant to decide on the content of his application, then the Council to make its planning decision on the application he has put before them. If Mr X disagrees with that decision, he can then go to the Planning Inspectorate to get their independent appeal decision on his development proposals. It is not fault for the Council to have not suggested alternative developments to Mr X for his land.
Final decision
We will not investigate Mr X’s complaint because: he had planning appeals to the Planning Inspectorate against the Council’s decisions which it was reasonable for him to have used; his complaint about the Council preventing him using his Inspectorate appeal in 2019 is late, there are no good grounds to investigate it now, and investigation would not achieve a different outcome; it was not fault by the Council to not provide him with alternative development proposals for his land once it had refused his application.
Investigator's decision on behalf of the Ombudsman