Summary: Mr X said there was extensive delay, which affected his development costs, in how the Council processed his planning application. We found there was fault in the Council’s pre application advice that caused Mr X frustration. The Council had already suitably put matters right by apologising to Mr X and offering to process, without payment of a fee, a new planning application for his proposed development.

The complaint

1. Mr X said the Council failed to process his planning application positively and proactively because it delayed telling him about a problem with his application form. Mr X said what happened caused extensive delay and added to costs, which meant he had to compromise his development proposals. Mr X wanted the Council to admit it was at fault and quickly engage with him should he make another planning application. Mr X also wanted the Council to review its policies and guidance to ensure they were accessible and provided for early engagement with planning applicants.

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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’. 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)
3. 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

4. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• considered information about Mr X’s development proposals available on the Council’s website;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

5. Most development needs planning permission from the local council. Before making a planning application, people may seek advice about their proposed development from the council. There is no legal duty for a council to provide pre application advice. But Government policy and guidance say early engagement can improve the efficiency and effectiveness of the planning application procedure. In practice, most councils offer a pre application advice service and usually charge for that service. Sometimes, people seek advice without using and paying for the council’s formal pre application service. Pre application advice is not binding on councils. But council planning officers should have up to date knowledge of planning law, policies, and guidance and give accurate advice based on the information people provide.
6. On deciding a planning application, the council issues a decision notice either granting or refusing planning permission for the development. The law sets out what information the council must include in the notice. For example, the notice must include a statement about how the council has ‘worked positively and proactively with the applicant seeking solutions to any problems’. (See Article 35 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, as amended (‘Article 35’).)
7. A notice granting planning permission for a development will usually include conditions to control and regulate the approved development. For example, a condition may list the plans showing new buildings and say the development must comply with those plans.
8. Once permission is granted, people sometimes need to change their development proposals. If the changes are ‘fundamental’, people may need to make a new application to the council and complete the planning process again. (See R v Coventry City Council Ex p Arrowcroft Group Plc 2001 PLCR 7.) Some changes may affect conditions on the original planning permission. If so, people may apply for permission to develop without complying with those conditions. (See section 73 of the Town and Country Planning Act 1990, as amended (‘Section 73’).)
9. The courts have considered Section 73. They said Section 73 could not be used to remove or change a condition that affected the operative part of the original planning permission. The ‘operative part’ means the description of the development granted planning permission as set out in the decision notice. So, for example, Section 73 was acceptable for redesigning a new house where the planning permission was for the ‘construction of one dwelling’ and a condition listed the plans showing a design for the dwelling. (See Mikael Armstrong v Secretary of State for Levelling Up, Housing and Communities ex p Cornwall Council 2023 EWHC 176.) But Section 73 could not be used to change a condition and increase the height of wind turbines where the planning permission included turbine height in describing the development. (See Finney v Welsh Ministers 2019 EWCA Civ 1868.)
10. The council follows the same underlying procedure when deciding a planning application for a fundamental change to a development or made under Section 73. That is, the council must publicise both applications. And its decision should be made on the merits of the application and in line with relevant planning policies unless material planning considerations indicate it should not. A council planning officer may prepare a report showing how an application has been assessed and ending with a recommendation to grant or refuse planning permission. A senior council officer, acting for their council, decides most planning applications. The senior officer decides how much weight to give material planning considerations and so may either agree or disagree with the case officer’s recommendation. If the council approves a Section 73 application, it may apply different conditions to the new planning permission.

What happened

11. Mr X wanted to develop land he owned and had made several applications for differing proposals with some receiving planning permission. This complaint arose after the Council granted planning permission for one of Mr X’s development proposals (‘the Permission’). The Permission set out a detailed description of the development. It also included a condition saying the development had to be carried out as shown in named plans (‘the Plan Condition’).
12. Mr X wanted to change the Permission development and his agent prepared new plans. Mr X’s agent then emailed the new plans to the Council and asked if the changes were ‘minor’ or a Section 73 application would be appropriate. A Council planning officer (‘the Officer’) replied that changes to the footprint and physical form of the development needed a ‘variation of conditions’ (that is, a Section 73) application.
13. About a month later, Mr X’s agent made a Section 73 application (‘the Application’), which the Council validated (accepted as properly made). The Council then had eight weeks to decide the Application after which, if Mr X did not agree a time extension, he could appeal to the Planning Inspectorate. The Council passed the Application to the Officer to publicise and assess. (The Officer’s later assessment of the Application found no planning grounds to justify refusing planning permission for the new plans.)
14. Meanwhile, and shortly before the eight-week decision date, a Council planning manager held a routine casework review meeting. The Council said its manager questioned use of a Section 73 application for Mr X’s new plans. The Officer, having been away, contacted Mr X’s agent the day before the eight-week decision date. The Officer told Mr X’s agent the new plans affected the development described in the Permission. And Section 73 could not be used to change development described in a planning permission. The Officer asked Mr X’s agent to withdraw the Application.
15. Both Mr X and his agent contacted the Council concerned it had not raised use of a Section 73 application much sooner. They also asked the Council to reconsider its position as they understood it found the new plans acceptable in planning terms. The Officer replied, apologising for not identifying the point sooner and saying they would try to convince the Council’s managers to proceed under Section 73. Mr X agreed to give the Council a two-week time extension to decide the Application. Mr X later said, in agreeing the time extension, he understood the Council would approve the Application.
16. About two weeks later, the Officer contacted Mr X and his agent. The Officer again apologised for not quickly spotting the new plans could not be approved using a Section 73 application. However, several managers had now considered the matter and agreed the Council could not approve the changes using Section 73. The Officer recognised the new plans varied the Permission development. But, they also showed development not covered by that described in the Permission. The Officer again asked Mr X to withdraw the Application and make a full application seeking planning permission for the new plans.
17. Mr X strongly objected saying what the Council proposed was a waste of everyone’s time and money and unnecessarily bureaucratic. Mr X said he would take the Council’s comments as a refusal of planning permission for the Application. Mr X also told the Council he would appeal its refusal decision.
18. About a week later, the Council refused planning permission for the Application. The decision notice said the proposals went beyond Section 73 by introducing development not covered by that described in the Permission.
19. Further correspondence followed, including formal complaints from Mr X where he said the Council had failed to comply with Article 35 (see paragraph 6). In response to Mr X and his complaints, the Council made further apologies for the frustration caused by its failure to spot the problem with the Application sooner. The Council said the simplest and fastest way forward would be for Mr X to make a full planning application with his new plans for his development. It would waive the fee for the full application and, following the publicity period, could move the application to a positive decision. The Council also said it had complied with Article 35 as its officers had responded quickly and in good faith when Mr X’s agent asked about changing the Permission. Regrettably, its advice to Mr X’s agent had been wrong but its officers had been polite in all correspondence. And, on realising there was a problem with the Application, it had advised how making a full application could overcome the problem.
20. During my investigation, Mr X applied for planning permission for different development on his land. Six weeks after accepting that application, the Council granted planning permission for the development.

Consideration

21. Mr X focused on Article 35 in his complaint, saying the Council failed to comply with its duty to positively and proactively seek solutions to planning problems. Here, in processing the Application, the Council did not identify any planning issues arising from Mr X’s new development plans. But, following a management review meeting, it identified a technical issue arising from use of a Section 73 application form for those new plans. The new plans, if approved, would not only change the Permission development but add development not previously approved. Section 73 did not give the Council the power to add to development described in the Permission. So, the Council was correct to refuse to grant planning permission under Section 73 for Mr X’s new plans.
22. Once the Council identified the new plans as going beyond a Section 73 application, the evidence showed it did respond ‘positively and proactively’. It suggested Mr X/his agent submit the new plans using a full planning application form (without paying any fee). The Council also said, once publicised, it could swiftly move to decide the full application. I had no reason to doubt this as the Council had already assessed the development shown in the new plans in processing the Application. And, it had found no planning grounds to refuse planning permission for the new plans. I therefore found no fault by the Council in relation to its Article 35 duty.
23. However, there was fault and that underlying fault arose when Mr X’s agent sought advice from the Council. The agent did not use the Council’s formal pre application advice service. But, the Council still needed to take suitable care in responding to the informal request it received from Mr X’s agent.
24. Mr X’s agent had provided the new plans for Mr X’s development when seeking advice. Good administrative practice needed the Council to check and consider the new plans against the Permission. Such a step would be proportionate and appropriate. And, with due care, such a check should have revealed the new plans included additional development to that approved by the Permission. This meant Mr X needed to make a full rather than a Section 73 planning application.
25. Receipt of the Application gave the Council a further opportunity to spot that Mr X’s new plans added development to that approved by the Permission. However, the Council missed this opportunity and processed the Application up to a management casework review meeting. At this point, another Council officer saw the Application and noticed that use of a Section 73 application might be inappropriate. Unfortunately for Mr X, this was about two months after his agent had sought informal advice. The failure to identify within the preceding two months that a Section 73 application was inappropriate for Mr X’s new plans, was fault.
26. The Council refused the Application because Mr X’s new plans included development beyond the scope of Section 73. As the Council had found no planning reason to object to the new plans, this decision would likely have been frustrating for Mr X. I therefore found the Council’s fault caused injustice.
27. To put matters right, the Council had apologised to Mr X and offered to quickly process a full planning application, without payment of any fee, for the new plans. I found the Council’s offer provided a proportionate, appropriate and reasonable way to address the injustice to Mr X caused by its fault. In practice, Mr X chose to apply, and received planning permission from the Council, for different development. In the circumstances, I found no outstanding injustice to Mr X for me to now remedy.
28. In reaching my view, I considered what Mr X said about the impact of delay on his development proposals, including costs. I found no significant avoidable delay. The Council processed Mr X’s later proposals within six weeks of his further application (see paragraph 20). It was likely that if Mr X had made a full application for the plans that accompanied the Application, the Council could have processed that application in less than six weeks. I did not find that such a timescale would have had any substantive effect on Mr X’s proposals.
29. The Council said it had learned from what happened here and had raised Section 73 applications with officers. I therefore saw no good reason to recommend now any service improvements.

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Final decision

30. I completed my investigation finding there was fault causing injustice for which the Council had already offered an appropriate remedy.

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Investigator's decision on behalf of the Ombudsman