Summary: X complained about the costs caused by incorrect advice given by a planning officer. The Council has already admitted fault and made an offer to compensate X for some of their costs. We found fault, but it was not necessary to make any further recommendations beyond the remedy already offered by the Council. This was because the Council should not be held solely responsible for what had happened.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council gave them misleading advice before they built a gateway in a wall at the boundary of their land.
3. The Council has accepted it was at fault and has offered a sum to pay for the removal of the gate and repair of the wall.

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The Ombudsman’s role and powers

4. 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’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I read the complaint and invited X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the correspondence between the parties and documents from earlier planning application decisions.
7. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Most councils (including this one) offer pre-application advice. Informal advice can be given by phone, or by responding to written enquiries. For more formal advice, information is often required and a fee charged.
10. The Council’s website shows the minimum amount of information it will need for formal pre-application advice is:
• details of the proposal;
• a location plan at a scale of 1:1250 or 1:2500;
• a proposed site plan;
• a fee, which is determined by the type of application.
11. The application for advice is allocated to a case officer, who will consider the proposal and advise whether it is likely it would be approved or not. The pre-application advice application form includes a disclaimer which says any advice given does not constitute a formal response or decision by the Council and cannot bind its decision in subsequent applications.
12. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
13. Councils are under a duty to pay special attention to preserving or enhancing Conservation Areas when making decisions on planning applications. Even if a proposed development is outside a Conservation Area, councils may take account of the impact it will have upon the Conservation Area itself.
14. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

15. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

What happened

16. X owns land which they say is land locked. X sent an email enquiry to the Council with a plan, showing the location of the land. The location of the proposed gate was not marked on the plan, and it was not made clear in which boundary the access gate was proposed. However, in a later email, X did explain that the gate would be installed in the boundary that was next to a public highway.
17. The Council’s planning officer responded to the enquiry to say no planning permission was required to install the access gate.
18. X carried out work to install the gate, and the Council received complaints from local residents. A planning enforcement officer visited the site and found the gate to be in breach of planning control.
19. The Council wrote to X and explained that planning permission was required because:
• there was a highway safety issue, because the gate opened directly onto the highway, which had no footway;
• the land was in the conservation area which required special consideration of heritage and architectural matters.
20. The Council accepted it was at fault and offered a sum for the removal of the gate and rebuilding of the wall. The Council apologised for its error and said that the request should not have been dealt with as informal advice, but by a formal pre-application advice fee.
21. X applied for planning permission, but it was refused. X then appealed to the Planning Inspectorate, but their appeal was refused.
22. X accepts the reasons why their application was refused but complains because they would not have carried out the development unless they had been provided misleading advice by the Council. X feels the Council’s offer to pay for the removal of the gate and rebuilding of the wall is unfair, because it does not compensate them for their original costs of carrying out the work.
23. X told me they knew about earlier applications, one of which was partly refused because of access highway safety reasons, similar to those given for the most recent refusal. X thought their circumstances might be different because they wanted pedestrian rather than vehicular access.

My findings

24. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
25. The Council was at fault for informing X that no planning permission was required.
26. When we find fault, we must decide whether to recommend a remedy to resolve the injustice caused to the individual complainant.
27. The Council has offered to pay some of X’s costs, but not all. The offer amounts to about half of X’s losses.
28. Though the Council was at fault, I do not consider it appropriate to recommend it increases its offer. This is because it is not reasonable to hold the Council solely responsible for what has happened. X knew about earlier planning decisions where problems with access from the land onto the highway were clear. In their enquiry, they could have made this clear, and asked whether a pedestrian gate would be acceptable. They could have marked the location of the proposed gate on the plan they sent to the Council. X’s enquiry could have been much clearer and specific, and though the Council could have recognised this lack of clarity and asked further questions, I cannot say it is solely responsible for what has happened. The Council’s offer is satisfactory in these circumstances.
29. Also, if X wanted to rely more firmly on the advice, they could have used the Council’s pre-application advice service. Because it requires more detailed information from applicants, it is less likely to misunderstand what is proposed.
30. For these reasons, while I found fault, I did not recommend any further remedy.

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Final decision

31. I found fault but I did not find it necessary to recommend the Council increases the offer it has already made. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman