Summary: We will not investigate this complaint about the Council’s processing of an application for a Certificate of Lawfulness for development of a site close to the complainant’s home.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council’s processing and decision on an application for a Certificate of Lawfulness of Existing Use or Development (CLEUD).

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The Ombudsman’s role and powers

2. 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.

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

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How I considered this complaint

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Section 191 of the Town and Country Planning Act 1990 enables any person to discover whether any existing use of buildings or other land is lawful. This means that a particular development can be certified as lawful because the time to take enforcement action has expired.
6. If the local planning authority receives information satisfying it of the lawfulness of the use of the site at the time of the application, it must issue a certificate to that effect and its lawfulness must then be “conclusively presumed”.
7. The onus of proof is on the applicant and the evidence test is on the balance of probability.
8. The planning authority cannot decide a CLEUD on the planning merits of the case. It cannot take amenity into account. The planning authority considers the CLEUD application on the facts available. It then considers whether the evidence available is enough to allow it to make a decision.
9. There is no duty on a local planning authority to tell neighbours of a CLEUD.

What happened

10. The Council received an application for a CLEUD on a site close to the site of Mr X’s former home, where his mother still lives.
11. Mr X disagrees with the Council’s decision to approve the CLEUD.
12. Mr X objected to the application stating:
• the turning head and residential access to the area was built many years ago and are not for use by large vehicles and such use is dangerous
• an illegally installed bridge now blocks access to the turning head
• the Council may not have told all interested parties about the application
• the plans are wrong; and
• some of the sworn statements are wrong.
13. The planning officer’s report describes the site, its use and history. It also refers to nine sworn statements it received confirming how the site has been used for the last ten or more years.
14. In the planning report, the officer noted that some sworn statements were from family and friends of the applicant. However, others are received from persons independent of the applicant, including an individual bound by the professional conduct requirements of the Royal Town Planning Institute. The officer also notes Mr X had not provided definite evidence to contradict the sworn statements received in support of the application.
15. Mr X’s concerns about safety and land ownership disputes about an adjacent access to a main ‘A’ road are not relevant as the application was not a full planning application. The CLEUD application only relates to whether the existing use of the site has continued for the last ten years.
16. The Council decided, having consider the information it received, that on the balance of probability the existing use of the site had been in place for at least ten years. It approved the application.
17. I have seen no evidence of fault in the Council’s consideration of the CLEUD. It considered the application, evidence, letters of support and the objections before making a decision. While Mr X objected to the application, the Council is satisfied there was no conclusive evidence to support his view that the business use had not been occurring for ten years. Therefore, there was no reason for the Council to refuse the application
18. I note Mr X’s concern that not all relevant parties were not made aware of the application. However, there is no legal requirement for the Council to consult anyone on CLEUD applications.

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Final decision

19. We will not investigate Mr X’s complaint because further investigation is unlikely to find fault in the way the Council considered the CLEUD application and made its decision to approve it.

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Investigator's decision on behalf of the Ombudsman