Summary: The Council was not at fault for the way it decided an application for a Certificate of Lawful Development.

The complaint

1. The complainant, whom I refer to as Mr X, complains about the Council’s decision to grant a Certificate of Lawful Development which changed the use of land from agricultural to equestrian.
2. Mr X says having horses on the land has caused issues from the manure and has destroyed the visual amenity of the village.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. If we are satisfied with a council’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

6. As part of this investigation I considered the complaint by Mr X and the Council’s responses. I considered the relevant planning documents relating to the application. I discussed the complaint with Mr X over the telephone and considered the information he provided. I sent a draft of this decision to Mr X and the Council and considered comments received in response.

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What I found

The law and guidance

7. Section 191 of the Town and Country Planning Act 1990 enables any person to apply for a Certificate of Lawful Development to confirm whether:
• Any existing use of buildings or other land is lawful;
• Any operations which have been carried out are lawful; or
• Any failure to comply with a planning condition or limit is lawful.
8. If the applicant provides the Council with information which satisfies the Council of the lawfulness of the use, operations or other matter at the time of the application, the Council must issue a certificate to that effect. Its lawfulness must then be “conclusively presumed”.
9. Government guidance issued in March 2014 says councils do not have to canvass evidence but may do so. Where the Council gathers other information, the guidance 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.
10. The onus of proof is on the applicant. Evidence is subject to ‘the balance probability’ test. That is, deciding if the evidence shows it is more probable the use existed. Councils may accept the applicant’s own evidence without corroboration from other independent evidence. If the Council has no other evidence to contradict or suggest the applicant’s version of events is less probable there is no good reason to refuse the application.
11. It is for the Council to decide whether the evidence available shows the applicant has proved the use as an established use. When deciding the application, the Council cannot consider the merits of the planning use or its likely impact on neighbours.

What happened

12. Mr X complained to the Council in March 2020 when a horse box appeared on his neighbour’s property. He told the Council his neighbour’s farm was agricultural land and had no planning permission for horses or a horse box. He also raised issues about the horse waste.
13. In further correspondence Mr X told the Council the horses were exercising in the fields over horse jumps, grazing in the fields and the neighbour was brining hay into the farm to bucket feed the horses. Mr X said his neighbour does not have planning permission for this.
14. The Council told Mr X’s neighbour to apply for a Certificate of Lawful Development as Mr X’s neighbour claimed they had used the site for equestrian purposes for over 10 years.
15. In June 2020 Mr X’s neighbour applied for a Certificate of Lawful Development claiming the site in question had been used for horses for over 10 years. The neighbour provided a statutory declaration saying the land had been used for equestrian activities for over 10 years. They also provided a planning statement with Google earth images of the site since 1999.
16. Mr X raised objections to the application. He disputed horses were on the site for the last 10 years. He said the number of horses has now increased on the site. Mr X said often his neighbour did not keep horses in the fields. It was only since March 2020 that a horse box and jumps appeared which need planning permission. Mr X said the waste from the horses are causing a nuisance.
17. The Council approved the application for a Certificate of Lawful Development in October 2020. The case officer’s report listed Mr X’s objections. The report said the Google earth images show field shelters and worn areas of land and tracks since 1999. The report considered the statutory declaration provided by the applicant which details how the applicant used the land in the past. The case officer noted Mr X’s objections but stated the application was to only identify if the land was used for horses, not whether the land had been used for grazing or jumping or handling. The care officer decided on the balance of probabilities the land had been used for equestrian purposes for the last 10 years and recommended the Council grant the applicant a Certificate of Lawful Development.
18. Mr X complained to the Council about its decision to permit the Certificate of Lawful Development. Mr X said:
• The evidence provided by the applicant was not sufficient.
• There was no use of horses on the land before February 2020. The field shelters did not have doors before this year so the applicant was not using them as stables.
• There was no evidence of bucket feeding or jumping before 2020 and the tracks could have been from different animals.
• The applicant placed manure heaps within a metre of the water course but removed these after the Environment Agency intervened. Mr X says the manure still runs off into the watercourse from its new position.
• The horsebox, jumps and cars parked in the field, often overnight, have harmed the view and amenity of the village.
19. The Council responded to Mr X’s complaint and said it was satisfied with the way it decided the application and could find no justification to revoke the decision to permit a Certificate of Lawful Development. The Council said it considered Mr X’s concerns and objections but on the balance of probabilities it decided equestrian activity was present for 10 years before the application. The Council said if Mr X has concerns about the waste from the horses he should raise this with the Environment Agency.

Analysis

20. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decision was made. My role is therefore to consider whether the Council decided the application without fault, not to decide the merits of the application for a Certificate or the merits of the evidence gathered.
21. Councils must consider applications for a Certificate on fact, not on the planning merits of the uses set out in the application. It must apply the balance of probabilities test to decide which way the evidence points. So, the Council must decide if the evidence shows the use more probably existed on the site for the necessary period. If the evidence shows it does, then the Council must grant the Certificate.
22. Material planning considerations such as the impact of the uses on neighbouring amenity are not relevant to an application for a Certificate. Therefore, the Council cannot consider them.
23. The Council had before it the evidence submitted by the applicant, including the statutory declaration and statement with photographs. The Council also received Mr X’s objections. The case officer’s report shows the Council considered both the evidence from the applicant and Mr X’s objections but decided on the balance of probabilities it was more likely than not the land had been used for equestrian purposes for the last 10 years. While I acknowledge Mr X disagrees with the Council’s consideration of the evidence, this was a decision the Council was entitled to make.
24. It is for the Council officers to decide what weight to give to the evidence presented by the applicant, and those objecting to the application. It is a matter of professional judgement whether the objections cast enough doubt on the evidence presented by the applicant to grant, defer or refuse the application. I find the Council had before it all relevant information when deciding the application and so acted without fault in its decision.

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Final decision

25. I have completed my investigation and found the Council was not at fault for the way it decided an application for a Certificate of Lawful Development.

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Investigator's decision on behalf of the Ombudsman