The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council’s refusal of her partner Mr Y’s Lawful Development Certificate (LDC). Mr Y, the planning applicant living at the same planning application address as Ms X, had a right of appeal to the Planning Inspectorate against the Council’s decision which it was not unreasonable for him to have used.
The complaint
Ms X lives with her husband Mr Y in the same property. Mr Y made a planning application to the Council for a Lawful Development Certificate (LDC), to regularise the use of an annex to the property, which the Council refused. Ms X complains the Council: failed to provide the evidence they used to refuse Mr Y’s LDC in time for an appeal; based their refusal on evidence which did not support the decision; failed to respond to her concerns about the connections between one of their neighbours and Council officers.
Ms X says the Council’s failure to provide the evidence used for its LDC refusal decision prejudiced Mr Y’s ability to appeal, which would have been to the Planning Inspectorate. She says the Council’s decision reason has caused serious harm to their reputations. Ms X says they have suffered serious financial loss and costs. She says her neighbours, against whom they won a separate legal dispute, have used the Council’s planning decision to seek to reopen that legal case. She also claims the neighbours have been making false reports to the Council to cause them harassment from officers.
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 Inspectorate acts on behalf of the responsible government minister. The Inspectorate 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 from Ms X, relevant online planning information and the Ombudsman’s Assessment Code.
My assessment
Ms X’s complaint is about the way the Council dealt with the planning process for Mr Y’s application. She says the Council made its decision on incorrect information, resulting in officers refusing the permission. Her complaints about the Council’s process cannot be separated from the planning outcome, the refusal of the application.
As the planning applicant, Ms X’s partner Mr Y had the right of appeal to the Planning Inspectorate against that refusal outcome, to remedy what they consider to be a flawed planning process and decision. We will only consider complaints about applicants with Planning Inspectorate appeal rights if we consider it would have been unreasonable to expect them to have used them.
The Council’s planning refusal letter told Mr Y of his appeal rights. Rather than appealing to the Inspectorate against the refusal, Mr Y and Ms X pursued matters with the Council. That they were able to pursue Council contact and seek to make a complaint shows there was no impediment from a lack of capacity to Mr Y appealing to the Inspectorate at that time instead. Mr Y also had a planning agent who should have been able to further advise Mr Y on the appeal process and relevant deadlines.
Ms X considers the Council prejudiced Mr Y in using his appeal rights because officers did not provide copies of the evidence they used to refuse his LDC before the appeal deadline passed. But any Inspectorate appeal would have been against the Council’s refusal reason, as written in its planning decision letter to Mr Y and his agent. No other information was required for Mr Y or the agent to lodge an appeal. If Mr Y did not agree with the Council’s decision, he could have challenged it at appeal to pursue the LDC he wants. The Planning Inspectorate would have considered the case afresh. This process would have determined whether the Council’s original decision reason was correct. Mr X may have included in his appeal all his complaint issues, including why he considered the Council’s decision was flawed and wrong, and the allegations he makes relating to the connections between his neighbours and Council officers. If he considered the Council’s actions were unreasonable when dealing with his LDC, Mr Y also could have made a claim against it for costs as part of the appeal.
We recognise Mr Y and Ms X were seeking to challenge the Council’s LDC decision by getting more information about it. But national government put in place the Planning Inspectorate appeal process for applicants to challenge planning decisions. That was the appropriate route to test their concerns about the grounds in the Council’s decision and make a case for a grant of the LDC. The Council’s actions or responses, including the timing of when Mr Y and Ms X received the information they sought, did not impede Mr Y from appealing to the Inspectorate in time nor prevent him from appealing. It was not unreasonable for Mr Y to have used that appeal process because he was made aware of those rights and was able to use them, so we will not investigate the complaint.
We note Ms X says her neighbours have used the Council’s planning decision to seek to reopen an unrelated legal case and made false reports to the Council about her and Mr Y. The Council’s role was to make a planning decision. Officers cannot control how third parties use documents they produce which must be publicly available, such as planning decisions. Councils have a duty to investigate reports about residents where the issues raised are under their jurisdiction. The impacts of the behaviours of Ms X’s neighbours complained of do not stem from any action or inaction by the Council.
Final decision
We will not investigate Ms X’s complaint because Mr Y, the applicant residing at the same planning application address as Ms X, had a right of appeal to the Planning Inspectorate against the Council’s decision which it was not unreasonable for him to have used.
Investigator's decision on behalf of the Ombudsman