Summary: We will not investigate this complaint about how the Council handled an application for a certificate of lawful development. This is because Mr X could have appealed to the Planning Inspectorate. We will not investigate the way the Council handled the planning enforcement case because there is not enough significant injustice to warrant an investigation.

The complaint

1. Mr X says the Council wrongly asked him to submit an application for a Certificate of Lawful Development in relation to a House in Multiple Occupancy (HMO). Mr X further complains the Council delayed in its enforcement duties. Mr X says this has caused financial loss. Mr X wants the Council to be clear on its enforcement position and make a payment to him for his financial loss.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended)
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• Delay – usually over eight weeks – by an authority in deciding an application for planning permission
• A decision to refuse planning permission
• Conditions placed on planning permission
• A planning enforcement notice.

5. 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 any injustice is not significant enough to justify our involvement (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X owned a property that had been used as a HMO for a long time. He said the Council wrongly asked him to apply for a Certificate of Lawful Development for the HMO.
9. The Council explained to Mr X it had received a report of a possible planning breach. The Council has a duty to investigate breaches. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
10. In this case, the Council advised Mr X to apply for a Certificate of Lawful Development to show the property’s lawfulness as a HMO. It is not unusual for a Council to invite an application in these cases. Mr X could have chosen not to submit the application if he did not consider it necessary and appealed to the Planning Inspector if the Council decided to take formal enforcement action.
11. Mr X complained about the Council’s delay in deciding the application but he could have appealed to the Planning Inspectorate for non-determination. I consider it would have been reasonable for Mr X to use his appeal right and the Ombudsman will not usually investigate when someone had the right to appeal to the Planning Inspector.
12. The Council has confirmed its enforcement investigation is now closed. It has told Mr X it would not be expedient to take enforcement action in relation to an unauthorised lightwell. It has also told Mr X he can apply for a Lawful Development Certificate if he would like to formally confirm an extension at the property is permitted development.
13. Mr X has complained about the Council’s enforcement investigation and says there were delays.
14. We will not normally investigate a complaint unless there is good reason to believe that the complainant has suffered significant personal injustice as a direct result of the actions or inactions of the Council. This means that we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures by the service provider.
15. The Council decided it would not take formal enforcement action at this stage. Therefore, Mr X has not suffered significant personal injustice because of any fault with the Council’s enforcement investigation. Mr X will also have the right to appeal if the Council decides to take enforcement action in the future.

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Investigator's decision on behalf of the Ombudsman