The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to issue a Certificate of Lawful Development for a property to be used as a residential home for children. There is not enough evidence of fault in the decision-making process to justify an investigation. Also, we cannot achieve the outcome the complainant is seeking.
The complaint
Mrs X complains there were errors in the process followed by the Council leading to its decision to grant a Certificate of Lawfulness of Proposed Use or Development (CLOPUD). This is for the house next door to her home.
She says this has caused her and her family distress. She says it will pose a risk to their security and down value her property.
Mrs X wants the CLOPUD revoked and financial damages for the distress caused and loss of property value.
The Ombudsman’s role and powers
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: there is not enough evidence of fault to justify investigating, or we cannot achieve the outcome someone wants.
How I considered this complaint
I considered information provided by Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Town and Country Planning Act enables a person to confirm whether an existing or proposed use of a building or land is lawful. If the council is satisfied the use is lawful it must issue a certificate to that effect. CLOPUD applications are not determined on planning merits and therefore councils do not take concerns about the impact on the area or residential amenity into account. Instead, councils will consider the facts available and decide if there is enough evidence on the lawfulness of the use or development.
The Council received an application for a CLOPUD. The proposal was for a change of use from a residential dwelling to a home for two children in care and three non-resident carers.
An application for a CLOPUD is not a planning application. The local planning authority must issue a certificate if it receives information satisfying them that the proposed use or operations would be lawful.
A Council planning officer prepared a report. This includes consideration of the proposal and relevant case law. The officer considered the development lawful and recommended the Council issue the CLOPUD. A senior officer agreed with the recommendation and the certificate was issued under the Council’s scheme of delegation.
Mrs X complains she was not notified of the application. She also complains the applicant failed to mention a previous CLOPUD application was refused in 2016.
Government guidance on processing applications for CLOPUDs states the application needs to describe precisely what is being applied for and the land to which it relates. The guidance also confirms there is no statutory requirement to consult third parties such as neighbours or parish councils. It says: “Views expressed by third parties on the planning merits of the case, or on whether the applicant has any private rights to carry out the operation, use or activity in question, are irrelevant when determining the application.”
As there is no requirement on the Council to notify neighbours about this type of application we cannot criticise the Council for not doing so. Also, as explained above, the Council cannot consider the impact of the proposed change of use on her family, home, or the local area.
Mrs X also complains the applicant failed to mention the similar application which was refused in 2016 and this is not referred to in the planning officer’s report. But the Council confirms it understood what the application was for, and the land involved. Therefore, it had enough information to decide the application. In these circumstances we cannot question the Council’s decision and nor can we achieve the outcome Ms X wants. The Council has granted the CLOPUD and we cannot say it must revoke the certificate to the detriment of the applicant.
Mrs X wants financial damages for the distress she says the Council has caused and the loss of value to her property. This is essentially a claim of financial damages caused by negligence, which is a court matter.
Where the substance of a complaint is an issue for the courts, we will not normally investigate. We have discretion to investigate if we consider it would be unreasonable for someone to take their matter to court, but we should not apply that discretion here. This is because this part of Mrs X’s complaint is a legal issue of negligence, which can only be decided in court. It is reasonable for Mrs X to put her case before that body which is best placed to make findings on legal matters.
Finally, Mrs X complains the Council failed to tell her about the complaint process and failed to tell her time limits for applying for judicial review (JR).
I understand when Mrs X discovered the Council had issued the CLOPUD she contacted the Council saying she wanted to object/appeal. The Council correctly informed her that she had no right of appeal, and she could apply for leave for a Judicial Review. It is for Mrs X to seek her own legal advice if she was considering taking legal action against the Council.
Final decision
We will not investigate Mrs X’s complaint because there is not enough evidence of fault in the Council’s actions. Also, we cannot require the Council to revoke the CLOPUD. Nor can we achieve financial compensation for distress or loss of property value Mrs X is seeking, as such matters are for the courts.
Investigator's decision on behalf of the Ombudsman