The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decisions to issue a Certificate of Lawfulness of existing use of development and not to prosecute the applicant. There is not enough evidence of fault to justify an investigation.
The complaint
The complainant, I shall call Mr J, complains about the Council’s decision to issue a Certificate of Existing Lawful Development (CLEUD) for a property next to his home.
He wants the Ombudsman to review the Council’s actions.
The Ombudsman’s role and powers
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)) We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by Mr J and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr J believes a developer put in a fraudulent application for a CLEUD by stating the building had been in use within the last ten years.
The Council says its legal department has considered the information. It has advised the Council is unlikely to meet the high standard of proof necessary to succeed in a criminal prosecution.
The Council also confirms that a previous planning permission granted in 2009 was implemented. This means the property can therefore operate as a residential institution (use class C2) without any restrictions on the: type of care provided; or whether for the elderly, young people or those with any disability.
The Council is entitled to reply on the legal advice it has received. Councils do not have to prosecute. Their decisions are taken in the general interests of the public rather than in the interests of individual complainants.
Final decision
We will not investigate Mr J’s complaint because there is not enough evidence of fault in the Council’s actions to justify an investigation.
Investigator's decision on behalf of the Ombudsman