Summary: We will not investigate Mr X’s complaint that the Council delayed giving advice on a planning development. We cannot achieve the outcome Mr X wants. He may reasonably use his legal remedies or options available within the planning system.

The complaint

1. Mr X complains the Council delayed four months in providing a report on his October 2020 request for pre-planning application advice which should have been answered by the end of that year. Mr X says the existing planning permission on the land lapsed because development works had not started by the required date in April 2021. Mr X says if he had received the advice on time he could have made an informed decision on how to proceed. He says the Council has caused distress, financial loss, and the land is devalued. He wants the Council to reinstate the planning permission, but it says it cannot do so. Mr X says the Council has obliged him to pursue a legal case to reinstate the planning permission. Mr X says the Council has apologised for the delay but has not remedied his injustice.

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The Ombudsman’s role and powers

2. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I have considered Mr X’s information and comments and discussed the complaint with him by telephone. The have considered the Council’s planning website information on the development and its reply to Mr X’s complaint dated 5 November 2021.

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My assessment

6. I will not investigate this complaint for the following reasons:
7. The Ombudsman could not say the Council is responsible for the significant delay in commencing the development if that was not done within the required period. The Spring 2018 planning permission applied conditions including a requirement that development start within 3 years of the permission and that the build was to a specific plan. The decision notice advice includes a reminder that the developer is responsible for complying with the planning permission. Mr X tells me he bought the property in the summer of 2020 and sought advice from the Council in October. The delay by the Council did not stop Mr X taking his own advice about whether to commence work on the existing planning permission or building according to the existing planning permission. He tells me he was considering changing the development.
8. We cannot provide the outcome Mr X wants which is that the Council reinstates the 2018 planning permission. Mr X tells me he has not taken legal action against the Council. His solicitor intends providing evidence to the Council that work had commenced within the required time. The Council’s website shows the previous owner obtained from the Council, in 2020, a certificate of lawful development (CLD) on a related part of the site. This was granted because the Council accepted work had started before the end of the 3-year period (on an earlier planning permission). Mr X could potentially follow this CLD route. If refused, he would have a right of appeal to the planning inspector who has the power to change the Council’s decision that the planning permission lapsed.
9. There is no reason for the Ombudsman to ask the Council to provide a greater remedy that it has done. The Council apologised for the delay in dealing with the requested advice. It offered to waive the pre-application fee and to provide free pre-application advice should Mr X wish to pursue a new application.
10. Mr X may use his legal remedy at court if he believes the Council was negligent or otherwise at fault and caused him significant financial or other losses. Such a complaint is outside the Ombudsman’s jurisdiction (see paragraphs 3 and 4 above). I consider it reasonable for Mr X to use his legal remedy. He has indicated he could do so and a court has the power to award damages.

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Final decision

11. The Ombudsman will not investigate Mr X’s complaint that the Council delayed giving advice on a planning development. We cannot achieve the outcome Mr X wants. He may reasonably use his legal remedies or options available within the planning system.

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Investigator's decision on behalf of the Ombudsman