Summary: We will not investigate this complaint about how the Council dealt with the complainant’s planning application. This is because the complainant could have appealed to the Planning Inspector.

The complaint

1. Mr X complains the Council misled him. He says a planning officer told him he would be given notice of the decision before determination, giving him time to allow him to take his proposal to the planning committee.
2. He wants the Council to refer the application to the planning committee or be resubmitted at no cost to him. He also wants an apology and a meeting with officers.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We investigate 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 continue an investigation if we decide:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference, or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right.

(Local Government Act 1974, section 26(6)(a), as amended)

6. 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

7. I considered information provided by Mr X and on the Council’s website.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr X says an officer told him that they would tell him of the recommended decision on his planning application before the Council issued the decision. He says he wanted to ask his councillor to refer the application to the planning committee.
10. I have considered the following email exchange between Mr X’s planning agent and the planning officer:

Agent – “Prior to making your determination, it would be appreciated if you would let us know. My client has indicated that he may seek a councillor in regard to the possibility of requesting a committee resolution.”

Planning Officer – “Yes, following receipt of the re-consultation comments, I can then advise you of our recommendation prior to determination”.

11. The Council’s Constitution states that all planning applications appear on a weekly list of applications received. Individual councillors can make a request for an application to be determined by the planning committee instead of under delegated authority. Any such request must be made in writing within 21 days of the application appearing on the weekly list.
12. In this case, Mr X’s local councillor did not make a request. There is no mechanism for an applicant to ask for a planning application to be referred to Committee.
13. As requested, the planning officer contacted Mr X’s agent to advise the case was recommended for refusal. This occurred two days before the decision was issued.
14. The planning system as set up by national government includes formal appeal routes for planning applicants. We will not investigate complaints from applicants where they have or had formal appeal rights to the Planning Inspectorate that it was not or would not be unreasonable for them to use.
15. Mr X wants the refusal of his application withdrawn and the case sent to the Planning Committee for a decision.
16. The Council’s refusal of his application gave him a right to appeal to the Planning Inspectorate. The Council’s decision notice gives details of those appeal rights and how to use them. I have considered whether it is or was reasonable for Mr X to use or to have used his appeal right after the Council’s refusal.
17. Mr X used an agent during the application so was represented by someone professionally involved in planning who would know the scheme of delegation and appeals processes. There has been no impediment to Mr X using his Inspectorate appeal right. It is also through an Inspectorate appeal, not a complaint to us, that Mr X may achieve the planning outcome he wants because the Inspectorate has powers we do not have to change the Council’s planning decision. Also, there is no mechanism for us to require the Council to quash a planning refusal and send it to committee for a fresh decision. For these reasons, it would not be unreasonable for Mr X to use or to have used his Planning Inspectorate appeal against the refusal of his application. This applies even if the appeal will not or cannot provide a complete remedy for all issues raised.

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Final decision

18. We will not investigate Mr X’s complaint because it is not unreasonable to expect Mr X to use or have used his right to appeal to the Planning Inspectorate against the decision to refuse his planning application.

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Investigator's decision on behalf of the Ombudsman