Objecting to Proposals

Judicial review v Ombudsman – what is the best choice for clients?

What is the question clients ask most often? When faced with the prospect of a long and perhaps costly legal battle against a decision to grant planning permission that the client finds deeply objectionable it is understandable that she or he will look around for the strategy that seems the most accessible.

The question I am asked most often, therefore, is whether instead of going to court to commence a judicial review, the client should simply complain to the Ombudsman about the decision. To the client these two strategies can appear to be equal alternatives. However, given that a judicial review must be filed within six weeks of the decision to grant permission, I always find it important to make clear without delay that a complaint to the Ombudsman is not an alternative if the  goal is to have the planning permission set aside, ie. quashed.

At first glance though, a complaint to the Local Government and Social Care Ombudsman seems like an attractive option. Listed below are some of the reasons why. For example:

1. Making a complaint is free.
2. The process is less formal than going to court.
3. You can make the complaint yourself and you don’t need a solicitor – although good legal advice is always on hand, naturally.

This article aims to look beyond the first impression in order to ask the key question: Can the Ombudsman actually deliver the result the client wants?

What powers does the Ombudsman have?

To find out whether a complaint to the Ombudsman will resolve the problem, it is important to be clear from the outset about the result you would like to achieve. From that point on, the client can consider whether the Ombudsman has the power to deliver that result.

Specifically, if you want a decision to grant planning permission to be  quashed, you will need to go to court. The Ombudsman does not have the power to quash a decision, or to compel the Council to reconsider its decision.

On the other hand, if the problem is not about a single decision but concerns instead the level of service you have received from the Council and you want an apology, or an assurance that their procedure will improve, a complaint to the Ombudsman can provide that. This is because the function of the Ombudsman is to investigate complaints, as well as to provide advice and guidance on good administrative practice.

Can the Ombudsman consider a matter that can be determined by a court or that has already gone to court?

At the heart of this contrast between these two approaches is the principle that the Ombudsman will not consider a matter that can be heard by a court, or that could form an appeal to be considered by a Planning Inspector.

The Ombudsman applies an Assessment Code to all complaints it receives. The first stage is the “jurisdictional stage” and this sets out that it will not consider a complaint about a matter that is going to court. It will also not investigate a matter that has previously been appealed or gone to Court in the same dispute. Where there is a defined route set out in law to get redress, the Ombudsman will not investigate the complaint.

The second stage in the Assessment Code sets out a number of discretionary tests that the Ombudsman uses in deciding whether to investigate a claim. These are in line with its aims of ensuring good administrative practices. The Ombudsman will also consider whether it is likely that he could achieve a meaningful outcome for the complainant.

What are some of the planning complaints that the Ombudsman has upheld?

The short case summaries below describe the kinds of planning matter that the Ombudsman investigates. They are complaints that were upheld in the year 2020 – 2021. These cases and others can be found on the website of the Local Government and Social Care Ombudsman.

1. A householder had complained to the Council that she was not properly informed about a development proposal to install large air conditioning units at the rear of a building near where she lives. She said that in determining the application, the planning officer had not taken into account the impact on her amenity. The complainant had made a further complaint to the Council about the way in which her original complaint was dealt with. The finding of the Ombudsman was that the Council was at fault in not sufficiently considering the impact of the proposed development on the complainant’s property. However, it found that there was no injustice. In relation to the householder’s further complaint, however, the Ombudsman found that the Council had not followed its own complaints procedure. The Ombudsman’s remedy was to require that the Council apologised. It also recommended that the Council should remind members of staff about the complaints procedure.
2. Another complaint the Ombudsman recently upheld concerned arrangements to review drainage for a new housing development. Permission was granted in 2016 but there were repeated failures in the way in which questions about drainage and flooding were handled. Previous complaints had also remained unresolved. The Ombudsman issued a lengthy and detailed decision. Ultimately, he identified fault that had caused injustice to the complainant. The proposed remedy was that the Council should apologise to the complainant and also pay £250 in recognition of his time and trouble spent in making the complaints. The Council also agreed with the Ombudsman that it would commission a report to investigate the issues raised, to enable future risks to be managed.

Conclusion – judicial review v Ombudsman?

The examples given show that the Ombudsman deals with a different category of disputes. They are not the same issues as the cases for which there is a remedy in the court.

It is important to be clear about this from the outset. If you are challenging a decision to grant planning permission, or any other planning decision, judicial review is the only strategy that can result in the decision being quashed.

On the other hand, where you are personally affected by a failure of the administration, the Ombudsman can achieve results. With an excellent record in securing compliance with their decisions (claimed to be over 99%), a complaint to the Ombudsman is definitely a worthwhile option.

Contact FGLP if you are considering a planning appeal, and would appreciate legal advice.

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