The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council charging for a planning application he submitted on behalf of one of his clients which he considers should have been free, and officers not replying to some of his correspondence on the matter. There is not enough evidence of fault in the Council’s interpretation of planning fee guidance, or in its decision to charge Mr X’s client for the planning application, to warrant investigation. We do not investigate councils’ internal complaint handling where we are not investigating the core issue which gave rise to the complaint.
The complaint
Mr X is a planning advisor. He submitted planning applications on behalf of a client. He complains the Council: incorrectly charged a fee for his client’s latest resubmitted application; failed to reply to some of his correspondence on the matter.
Mr X says he had to pay for the application out of his own pocket, despite it being for a client, because he believes he could not go back to his client and ask for the funds on principle. He wants the Council to refund him the application fee money.
The Ombudsman’s role and powers
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. (Local Government Act 1974, section 24A(6)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information from Mr X, relevant online planning information and the Ombudsman’s Assessment Code.
My assessment
Mr X’s client paid the £206 application fee for their planning proposal in early 2021. The Council refused the permission in February 2021. Mr X and his client made amendments to the application and resubmitted it two months after making the first application. The Council did not charge for this application. Mr X’s client then withdrew that resubmitted application later in 2021. They then changed the plans again and reapplied in spring 2022. The Council charged another £206 fee for this 2022 application, which it subsequently refused.
Mr X believes a fee exemption applied to the 2022 application because it was for a development of the same character or description, on the same site, by the same applicant, and submitted within 12 months of a withdrawn application. The Council disagrees and considers its interpretation of the regulations mean it could charge for the latest application. Officers consider Mr X’s client’s free application was used up when they resubmitted the application in summer 2021, and their withdrawal of that application did not mean they had another ‘free go’.
Section 9 of ‘The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012’ states the application fee is not chargeable for ‘an application’ [my emphasis] made following the withdrawal or refusal ‘of a valid application made by or on behalf of the same applicant’. This reference to ‘an application’ in the singular indicates one non‑chargeable application may follow each paid-for application, not two or more. The online Planning Portal on fee waivers for application resubmissions also says: ‘When a previous application has been granted, refused or withdrawn, one further application by the same applicant for the same type of development on the same site can generally be made free of charge within 12 months. It is for the local authority to decide whether this concession applies’ [my emphasis].
We may only criticise a council’s decision if there is evidence of fault in the decision-making process used which, but for that fault, would have resulted in a different decision. The Council considered the guidance and information on planning fees and reached its view that only one free resubmission may follow a paid‑for planning application, irrespective of whether the paid-for application was granted, refused or withdrawn. The Planning Portal also states the decision on whether a free application applies is for the local authority to decide, which it has done. The Council was entitled to make its interpretation of the guidance and decision on the 2022 planning fee. There is not enough evidence of fault by the Council in the process it used to make that interpretation and its decision to charge Mr X’s client for their third application to justify an investigation. I realise Mr X disagrees, but it is not fault for a council to properly make a decision with which someone disagrees.
Mr X also complains about the Council not responding to some of his correspondence on this matter.
We do not investigate councils’ internal complaint handling in isolation where we are not investigating the core issue which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of fault in the Council’s interpretation of the planning fees guidance and its decision to charge Mr X’s client for the latest planning application to warrant investigation; we do not investigate councils’ internal complaint handling in isolation where we are not investigating the core issue giving rise to the complaint.
Investigator's decision on behalf of the Ombudsman