Summary: We will not investigate this complaint about how the Council dealt with a planning application or the pre application planning advice it provided to the complainant. This is because we are unlikely to find fault by the Council. The complainant also had a right to appeal to the Planning Inspectorate about the Council’s decision to refuse planning permission.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about the pre application planning advice he received from the Council. Mr X says he was wrongly told that he would need to apply for planning permission to erect a fence at the sides of his property.
2. Mr X has also complained about how the Council dealt with his application and says poor customer service and communication led to the application being refused.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault.

(Local Government Act 1974, section 24A(6), as amended)

4. 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))
5. 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.

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How I considered this complaint

6. I have considered Mr X’s complaint and the Council’s responses. I invited Mr X to comment on a draft of this decision.

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What I found

7. Many councils offer a range of pre application planning services. Councils should act in good faith when providing pre application advice. However, pre application advice does not bind the council and any planning application then submitted will be determined on its own merits. If a developer wants a definitive view about whether a proposed development needs planning permission, they can apply for a Certificate of Lawfulness of Proposed Use or Development (CLOPUD).

What happened

8. Mr X contacted the Council to request informal pre application planning advice. He says he told the Council he wanted to erect a fence at the sides of his home and a fence and a gate at the front of his property. Mr X says he was advised to apply for planning permission.
9. Following this, Mr X applied for permission to erect the fences. The Council considered the application but refused permission due to the impact the fence proposed for the front of the property would have on the character of the area.
10. Mr X has complained about how the Council dealt with the application and says he was not properly supported by the planning officer. He also says he was wrongly told planning permission was needed to erect the side fences. Had he known that this was permitted development he would not have made an application. Mr X says the Council should refund the planning fee.

Assessment

11. I will not investigate this complaint about how the Council dealt with a planning application or its pre application advice. This is because I am unlikely to find fault by the Council and Mr X could have appealed to the Planning Inspectorate about the decision to refuse planning permission.
12. Mr X says he was not properly supported by the case officer and had the issues with the application been properly discussed he could have made amendments to the plans. However, the role of the case officer is not to act as the developer’s agent and they do not need to advise the applicant about how the proposal should be changed. Furthermore, if Mr X did not agree with the decision to refuse permission, he could have appealed to the Planning Inspector. The Ombudsman will not usually investigate matters where there is a right of appeal.
13. Mr X has also complained about the advice the Council gave him before he submitted the planning application. He says he would not have applied for planning permission and only erected the side fences had he known this was permitted development.
14. The Council does not have any records of the conversation Mr X had with an officer before he applied for planning permission and I cannot know what was discussed. However, it is clear this was informal advice. The Council is not bound by any pre application advice it gives and the only way to get a definitive view regarding the need for planning permission would be to apply for a CLOPUD. Furthermore, Mr X did still need permission for the rest of the proposed development.

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Final decision

15. I will not investigate this complaint. This is because it is unlikely I would find fault. Mr X could also have appealed to the Planning Inspectorate if he disagreed with the Council’s decision to refuse planning permission.

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Investigator's decision on behalf of the Ombudsman