Ashford Borough Council (23 020 677)
The Ombudsman's final decision:
Summary: We will not investigate Mr X’s complaint about the Council’s handling of his planning application. Mr X has started court action against the Council and if he disagrees with its decision to refuse his application it would be reasonable for him to appeal to the Planning Inspector.
The complaint
- The complainant, Mr X, complains the Council trespassed on his property while dealing with his planning application and gave him only 24 hours to decide whether to withdraw his application or have it refused.
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’.
- 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 could take the matter to court. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court but cannot investigate if the person has already been to court. (Local Government Act 1974, section 26(6)(c), 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), 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.
How I considered this complaint
- I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
- Mr X confirms he has issued proceedings against the Council at court and has sought compensation for the way it handled his planning application. It is unclear whether these proceedings related directly to the incident of trespass he alleges by the planning officer but trespass is a legal issue and one which the courts are better placed to deal with. It would therefore have been reasonable for him to include this issue as part of his claim if he did not do so initially.
- We cannot investigate complaints about matters which have been the subject of court proceedings and the incident did not in any event cause Mr X significant injustice; we would not therefore investigate it even if we had jurisdiction to do so.
- While Mr X is also unhappy he was only given 24 hours to decide whether to withdraw his application or have it refused, the ultimatum itself did not cause Mr X significant injustice. Mr X’s injustice lies in the Council’s decision to refuse the application and if Mr X disputes this it would be reasonable for him to appeal.
- The Council did not have to give Mr X the option to withdraw his application and the Council clearly considered his proposal was not acceptable. Mr X says he was given no time to seek professional advice but we could not say any advice would have altered the outcome. Mr X may seek professional advice about the Council’s decision now and, as set out above, if he believes the Council’s decision is wrong he should apply to the Planning Inspector to challenge it.
Final decision
- We will not investigate this complaint. This is because Mr X has already taken court action against the Council and if he disagrees with the decision to refuse his planning application it would be reasonable for him to appeal.
Investigator's decision on behalf of the Ombudsman