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

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about the pre application advice he received from the Council. He is also unhappy with how it dealt with his planning application. Mr X says he has incurred costs because of the Council’s actions.

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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 there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. 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))
4. 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

5. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

6. 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. 
7. In this case, the Council granted Mr X planning permission for a new development. The permission was subject to conditions, including conditions which restricted the use of the building. Following this, Mr X decided he would like to use the building more flexibly and paid the Council for pre application advice. In response to Mr X’s request, the Council suggested he make an application to vary the planning conditions.
8. After Mr X applied to vary the planning conditions, the case officer told him a full planning application would be needed for the changes proposed. Therefore, Mr X withdrew his application and made a full planning application. The Council has since refused planning permission.
9. I consider it clear the Council’s pre application advice was given on a without prejudice basis and it said it could not confirm if officers would support the changes without further consideration. The Council has also explained why the proposal submitted by Mr X needed a full planning application. I understand Mr X disagrees. But he could have chosen not to withdraw the application to vary the plans and then appealed to the Planning Inspectorate if the Council refused permission.
10. Mr X has also complained about how the Council dealt with his full planning application and disagrees with the Council’s reasons for refusing planning permission. However, Mr X could have appealed to the Planning Inspector if he was unhappy with the Council’s decision to refuse planning permission. The Ombudsman will not usually investigate when someone had a right to appeal to the Planning Inspector, even if the appeal would not address all the issues complained about.

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Final decision

11. We will not investigate Mr X’s complaint because we are unlikely to find fault by the Council. I also consider it would have been reasonable for Mr X to have used his right of appeal to the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman