Summary: The Council is not at fault for not refunding the application fee of £462 when it did not determine Mr and Mrs X’s application for a Lawful Development Certificate within 26 weeks and within the extension period agreed with Mr and Mrs X. The Council is at fault as it delayed in dealing with Mr and Mrs X’s complaint. It has apologised for this which is a sufficient and proportionate remedy.

The complaint

1. Mrs X complains about how the Council considered Mr X’s application for a Lawful Development Certificate. In particular, Mrs X complains the Council:
1. provided misleading advice,
2. failed to respond to her and Mr X’s communications,
3. did not consider the application properly as officers did not visit the site and three different officers were involved in the application,
4. changed its decision about whether her garden was immune from enforcement action,
5. delayed in determining the application,
6. failed to refund the application fees.

Mrs X says the Council’s handling of the application has caused significant distress to her and Mr X.

2. Mrs X also complains the Council breached the Data Protection Act by including the names and addresses of people who provided supporting evidence for their application and delayed in responding to their Subject Access Request.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. This includes planning appeals. 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))
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. 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)
6. 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

7. I have:
• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision and considered the comments.

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What I found

8. A person can apply for a Lawful Development Certificate (LDC) to be certain that an existing use of a building or land is lawful and does not require planning permission or is immune from enforcement action as the time to take enforcement action has expired. An LDC is not planning permission. The planning merits of the use, operation or activity in the application are not relevant. The issue of a certificate depends entirely on the factual evidence about the history and planning status of the building or land.
9. The Council should make a decision on LDC applications within eight weeks unless an extension is agreed with the applicant. Any such extension must be in writing and should set out the timescale within which a decision is expected.
10. The applicant has a statutory right of appeal to the planning inspectorate against a refusal to grant an LDC. The applicant can also appeal to the planning inspectorate against the non-determination if the Council has not decided the application within eight weeks and the applicant has not agreed an extension. An applicant can also appeal to the planning inspectorate against non-determination if a council does not decide the application within the agreed extension time.
11. The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 as amended sets out the circumstances where planning fees can be refunded. Paragraph 9a provides that any fee paid by an applicant in respect of an application for planning permission or for the approval of reserved matters shall be refunded to the applicant in the event the local authority fail to determine the application within 26 weeks of the date when a valid application was received. This is known as the planning guarantee.

What happened

12. A member of the public complained to the Council that Mr and Mrs X were using agricultural land and an agricultural building for residential use without planning permission. The Council had investigated a similar complaint about the use of the land several years earlier and decided it was not expedient to take enforcement action. This investigation did not include the use of the building for residential purposes.
13. Officer A, enforcement section, visited Mr and Mrs X as part of his investigation into whether there was a breach of planning control. Following his visit, officer A sent an email to Mr and Mrs X. Officer A said Mr and Mrs X may have a case to show the change of use of the land and building were immune from enforcement action. Officer A requested Mr and Mrs X submit an application for an LDC within 28 days.
14. Some months later officer A contacted Mr and Mrs X as they had not submitted an application for an LDC. He advised that he would recommend enforcement action be taken if their application was not submitted within 14 days. Mr and Mrs X contacted officer A several times with questions about why they needed to submit an application when they were under the impression officer A considered the breach to be immune from enforcement action. Officer A explained there was still a breach of planning control which needed to be regularised. He also allowed Mr and Mrs X more time to submit an application.
15. Mr and Mrs X submitted their application in December. The Council sent a letter to Mr X advising the application had been registered and it had received the fee of £462. The letter advised the application should be determined by February and that Mr X would have the right to appeal to the planning inspectorate if the Council had not made a decision by this date.
16. The Council sent an email to Mr X in February to say the application would not be determined by the target date. The Council did not agree an extension with Mr X at this time. The Council then sent a further email to Mr X in March seeking his agreement to an extension to 16 April. Mr X agreed to the extension.
17. Officer A notified Mr and Mrs X that the Council was minded to refuse the application for the LDC. In this email officer A said some of the land could be immune from enforcement action within the next six weeks.
18. In May, Mr and Mrs X provided further information to support their application. The Council refused the application in July. The decision letter notifying Mr and Mrs X of the decision to refuse set out their right to appeal against the decision to the planning inspectorate. Mr and Mrs X did not appeal.
19. Mr and Mrs X submitted a further application for an LDC for the change of use of the land and agricultural building. Mrs X has provided a copy of a letter from the Council dated August stating the land used as garden was now immune from enforcement action. The Council refused the application.

Complaint

20. In May, Mrs X made a complaint to the Council about how it was considering their LDC application including delays in reaching a decision. The Council considered the complaint at stage one of its complaint procedure in late June. The Council apologised for the delay in responding to Mrs X’s complaint and for the delays in handling their LDC application. The Council did not agree to refund the application fee for the LDC certificate but advised they could make a further application free of charge.
21. Mrs X requested the complaint be escalated to stage two of the complaints procedure as she considered the stage one response to be confusing and insensitively worded. She also complained that the Council had breached the Data Protection Act by including names of people who had provided evidence for the application on its website. The Council apologised for the delay in determining the application.
22. I asked the Council why it did not refund Mr and Mrs X’s application fee as it had taken longer than 26 weeks to determine the application. The Council initially said it did not refund the planning fees as Mr and Mrs X agreed to an extension of the time period to determine the application. The Council has now said the planning guarantee does not apply to applications for LDCs as they are not applications for planning permission. It is therefore under no obligation to refund the application fee.

My assessment

Our jurisdiction and what I have investigated

23. We will not investigate a complaint where a person has the right to appeal against the Council’s decision on a planning application, unless there are good reasons why the person could not appeal. Where we consider it is reasonable to expect a person to appeal, we will not generally consider how the Council considered the planning application as it not usually separable from the decision on the planning application.
24. I have not investigated the time taken by the Council to determine Mr and Mrs X’s application for an LDC or its decision to refuse the application. This is because Mr and Mrs X had the right to appeal against the non-determination of their LDC application when the Council took longer than eight weeks to make a decision. The Council’s letter of December 2018 acknowledging the application provided details of the right of appeal in the event the Council did not determine the application by 11 February 2019. Mr and Mrs X also had the right to appeal against the Council’s decisions to refuse their application for the LDC. The decision notice issued by the Council set out the right to appeal against its decision to the planning inspectorate. I therefore consider it is reasonable to expect Mr and Mrs X to have appealed against the non-determination of the LDC application and against the Council’s decision to refuse the application. I have not seen any good reasons why it is not reasonable to have expected Mr and Mrs X to appeal.
25. Mr and Mrs X have complained about how the Council has handled their application. This includes complaints about not visiting the site, changes of case officer and changing its decision about the immunity of the garden from enforcement action. Mr and Mrs X say these complaints have caused significant distress to them. These issues are not separable from the Council’s decision on the LDC application. I cannot investigate these issues without being drawn into the Council’s decision on the application.
26. Mr and Mrs X have also complained about misleading advice given by officer A that the change of use may be immune from enforcement action. The evidence shows officer A informed Mr and Mrs X that they should submit an application for an LDC. The decision as to whether the change of use is immune from enforcement action is closely linked to the Council’s decision on the application so I will not consider this as Mr and Mrs X had the right to appeal.
27. Mr and Mrs X are unhappy with the Council’s consideration of their further LDC application and decision to refuse it. I have not considered this complaint as it is a new matter which has arisen since I started my investigation. But in any event Mr and Mrs X have the right to appeal against the Council’s decision to refuse the application.

Refund of application fees

28. The Council has now said the planning guarantee does not apply to applications for LDCs. It is unfortunate the Council has not previously made this argument. However, I do not consider there is fault in how the Council reached this decision.
29. The Council’s position is that the regulations provide the planning guarantee applies to applications for planning permission. Mr and Mrs X disagree with the Council’s position that the planning guarantee does not apply to applications for LDCs and its interpretation of the regulations, including what amounts to a planning application. I have carefully considered Mr and Mrs X’s position and their different interpretation of the regulations. It is not the role of the Ombudsman to interpret the law, that is a matter for the courts. The Council has explained its reasons why it considers the planning guarantee does not apply to LDCs. I do not consider there is fault in how the Council reached its decision as an LDC is not a grant of planning permission. I therefore do not have grounds to question the Council’s decision that the planning guarantee does not apply.
30. Mr and Mrs X now consider the Council has overcharged them for the LDC fee. I have not investigated this matter as it is a new issue which Mr and Mrs X have not previously raised with the Council. Mr and Mrs X may wish to make a complaint about this matter to the Council.

Delays in responding to Mr and Mrs X’s correspondence

31. In its response to Mr and Mrs X’s complaint the Council acknowledged there had been delays in responding to the complaint and correspondence with the case officer. The Council apologised for these delays. This is a sufficient and proportionate remedy for the frustration caused to Mr and Mrs X by these delays.

Breach of Data Protection Act

32. I have not considered Mr and Mrs X’s complaint that the Council breached the Data Protection Act by placing the names of people who had provided evidence in support of the application on the Council’s website. Mr and Mrs X can make a complaint to the Information Commissioner about breaches of the Data Protection Act. I do not consider there are good reasons for me to consider this complaint as the Information Commissioner is better placed to deal with the matter.

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Final decision

33. The Council is not at fault for not refunding the application fee of £462 when it did not determine Mr and Mrs X’s application for a Lawful Development Certificate within 26 weeks and within the extension period agreed with Mr and Mrs X. The Council is at fault as it delayed in dealing with Mr and Mrs X’s complaint. It has apologised for this which is a sufficient and proportionate remedy. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman