Summary: Ms X complains the Council knew her retrospective planning application would be refused but did not advise her of this before she submitted it. We will not investigate the complaint because it is unlikely we can add to the investigation already carried out by the Council and an investigation is unlikely to lead to a different outcome.

The complaint

1. The complainant, who I refer to as Ms X, says the Council should have told her in advance that her retrospective planning application to retain fencing in her garden would not be passed. She says she should have her planning costs reimbursed by the Council. She also complains about the way her complaint was handled.

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The Ombudsman’s role and powers

2. 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, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. In considering the complaint I reviewed the information provided by Ms X and the Council. I gave Ms X the opportunity to comment on my draft decision and considered what she said.

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What I found

4. A number of years ago, Ms X erected fencing in her garden over the permitted height.
5. In 2019 her neighbour complained about the height of the fencing and the Council wrote to Ms X to advise her of the planning breach. The letter sent to her explained she had three options: submit a retrospective planning application to retain what had been erected; reduce the fencing height to a maximum of 2 metres or remove the fencing.
6. Ms X submitted a retrospective application to retain the existing structure but this was refused in early 2020. She subsequently reduced the height of the fencing.
7. In 2021, Ms X made a formal complaint to the Council and asked why she had been offered the opportunity to submit a retrospective planning application when nothing could have changed between her application and the refusal and when Council policy meant the application would be refused. She said she should have been offered a reduction in height so that it complied with Council policy.
8. The Council responded to Ms X to explain she had been given the three options in 2019 and that the letter setting these options out also noted that the views expressed by the officer in the letter were not binding upon the Council when considering any formal application and that the submission of a retrospective application would not guarantee a grant of planning permission.
9. Ms X followed up on this matter, contacting another officer. The original responding officer apologised for the lack of further responses to her but said the Council had addressed her points and that she could complain to the Ombudsman if she remained dissatisfied.

Assessment

10. When the Council notified Ms X of the planning breach in 2019 it set out the three options available to her to regularise it. The wording of the notification letter explained that the submission of an application would not guarantee permission. While I understand Ms X was disappointed with the outcome on the application, and the money she had spent on it, councils must determine applications in accordance with their policies and procedures and they cannot say in advance that an application definitely will or will not obtain consent.
11. Ms X was given the three options and it was her decision about what action to then take. An investigation by the Ombudsman is unlikely to add to the Council’s own or lead to a different outcome.
12. We do not generally investigate complaints about complaint handling when we are not investigating the substantive issue.
13. In responding to my draft decision Ms X says the letter she received was missing a commonly used strap line which the Council adds when it thinks an application will not get approval and says “it is felt an application is unlikely to be approved but you can still apply”. Ms X says she should have just been offered the option of decreasing the height and so saving herself the cost of the fees. However, while the absence of such a strap line is noted, the letter set out what the options were and that submission of an application did not guarantee permission. It was up to Ms X to decide which route to take and what to seek approval for. In this case, the presence of net panelling was considered relevant as well as the fencing and trellis.
14. Ms X says the siting of her neighbour’s building was not correctly shown in the site plan, and she has questions about this, but it cannot be concluded that this affected the outcome of her application which was refused due to the impact on the street scene and on the character and appearance of the local area.

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Final decision

15. We will not investigate this complaint. This is because it is unlikely we can add to the investigation already carried out by the Council and an investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman