Summary: The complainant says the Council failed to consider the impact on him and his neighbours when considering an application for a certificate of lawfulness of use when it granted the certificate. The change of use the complainant says has led to anti-social behaviour, loss of amenity and a devaluation of his home. The Council says it considered the application correctly and the Police have taken the lead in dealing with the anti-social behaviour such as criminal damage and threats of violence. The Ombudsman finds the Council acted without fault.

The complaint

1. The complainant whom I shall refer to as Mr X says the Council when considering an application by a neighbour for a certificate of lawfulness of use failed to:
• Properly consult with neighbours about the application;
• Properly consider the application for the certificate and avoid misapplication of the law;
• Properly consider using anti-social behaviour powers.
2. Mr X says this resulted in the Council granting a certificate. Thus it removed its power to control the use of the house next door> Mr X says that lead to an adverse impact on his amenity. Mr X says the Council’s failure to prevent this use means he and his neighbours experience anti-social behaviour they would otherwise not experience including a threat of physical harm to Mrs X. The neighbour’s behaviour Mr X believes has made his property unsaleable. Mr X wants the Council to realise it has misapplied the law and stop the anti-social behaviour.

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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 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. In considering this complaint I have:
• Contacted Mr X and read the information presented with the complaint;
• Put enquiries to the Council and studied its response;
• Researched relevant law and guidance;
• Shared with Mr X and the Council my draft decision and reflected on comments received.

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What I found

The law

7. Under Section 192 of the Town and Country Planning Act 1990 anyone can apply to the local planning authority to find out whether:
• Any proposed use of buildings or other land would be lawful; or
• Any operations proposed would be lawful.
8. The Council must decide the application within eight weeks and the applicant may appeal against a refusal. The applicant must prove the legality of the use. The Council decides if the applicant has so proved the issue on the balance of probability.
9. Councils may not decide an application on the planning merits of the use. Therefore, councils may not refuse a certificate on the grounds of impact on a neighbour’s amenity or other material planning consideration. It is a legal decision and the Council must decide whether the evidence provided is enough to decide the application.
10. The Town and Country Planning (Use Classes) Order 1987 (the Order) places the use of land and buildings into various categories called ‘Use Classes’. Usually, to change from one use class to another needs planning permission, although the law allows for exceptions. ‘Dwellinghouses’ fall with Class C3 which has three subsections. Class C3 allows for groups of people (up to six) living together as a single household. Case law has clarified how to class a house as a single household. The Order says that a material change of use from one use to another within the same Use Class does not represent development and therefore does not need planning permission.
11. The Anti-social Behaviour, Crime and Policing Act 2014 gives powers to council’s and local police forces for dealing with anti-social behaviour. The Act defines anti-social behaviour as conduct that has caused or is likely to cause, harassment alarm or distress to any person. Councils and Police may issue Community Protection Orders. To do so the issuing authority must decide if an individual’s or body’s behaviour detrimentally affects the qualify of life of those living in the area. The conduct must be continuous and unreasonable.

What happened

12. In August 2018 the Council received an application for a Certificate of Lawfulness of Use (the Certificate) from Mr X’s neighbour who intended to use the house to provide supported living for young people. In the application the applicant said the use had not yet begun.
13. During September 2018 the Council’s case officer visited the area to view the character of the neighbourhood and researched the Council’s records for the property’s planning history. The case officer raised some points of clarification with the applicant who responded in October 2018.
14. The case officer reviewed all the information and wrote a report setting out the case officer’s professional view of the application and recommended approval. Senior officers reviewed the report and agreed with the recommendation. The Council issued a decision notice in October 2018.
15. The Council says that under the Town and Country Planning Act it is not under a duty to consult with neighbours or tell them about an application for a certificate of lawfulness of use. The previous owners of the house used the house as a single dwelling within Use Class C3. The new owners want to use it for supported living to support children and staff living as a single household within Use Class C3b.
16. In the case officer’s report, the case officer says the Council must consider whether the proposed use falls within the existing lawful use as a dwelling house under Class C3. If it does, then the applicant does not need planning permission and the Council must grant the Certificate. If the use does not fall within Class C3 then the Council must refuse the application. The issue is a matter of law. Councils considering applications for Certificates have no legal duty to publicise the application or invite neighbours to comment on it. This is because the issue does not need consideration of the planning merits of the proposal, unlike when someone applies for planning permission to change the use of a house.
17. Where the Council receives a planning application to develop a house, the Council considers the application by giving publicity including writing to immediate neighbours giving them an opportunity to comment. It would need to consider the likely impact on neighbour’s amenity for example. However, when granting a Certificate, the Council may not do that. It must only consider whether the applicant has shown the proposed use falls within the existing use class.
18. The case officer’s report says that as the applicant only intended to house four people in the home, the proposal is within the Order’s six-person rule.
19. In the report the case officer cites legal cases including appeals supporting the argument staff and those they cared for lived in a house as a single dwelling, i.e. within the same Use Class. One case found the use of a staff rota and presence of staff did not change the nature of the use and found it similar to a Class C3 use.
20. Mr X discovered the proposed use and sent in an objection. The case officer notes the objection to the use of the house as a supported living home. However, the case officer’s report says the legal precedents and the fact the use is within Class C3 meant the Council must grant a Certificate because the use did not constitute development. Both uses fall within Class C3.
21. The Council issued the Decision Notice in October 2018.
22. In June 2019 the Council received complaints from Mr X and residents in Mr X’s street. They complained of violent incidents at the supported housing home. They said there had been damage to a car windscreen and a resident of the supported housing home had smashed the first-floor window at the property. Residents expressed alarm at the rise in anti-social behaviour with Police attending the property regularly. The neighbours complained that residents changed regularly at the house and they objected to the threats of violence, foul language and use of the house for this residential home.
23. In response the Council explained it had to grant the Certificate. The Council directed residents to the home managers suggesting neighbours arrange to meet with them and to take up the concerns with the Police. The Council says it and the Police take a partnership approach to using anti-social behaviour powers to ensure the most effective resolution. The Council says the Police have taken the lead on measures to control behaviour. This includes allegations of criminal behaviour. Residents have completed incident diaries to give information on the frequency and character of the anti-social behaviour enabling the Police to decide which powers to use.
24. The Council says it does not run the supported housing service. It has not placed anyone in its care and has no direct control over management of the service.

Analysis – is there fault leading to injustice?

25. My role is to examine how the Council dealt with the application for a certificate of lawfulness of use. It is not my role to decide the merits of that application or the professional officer’s interpretation of the evidence and law. Similarly, my role is to examine how the Council responded to complaints of anti-social behaviour not to say what action the Council should take. If I find fault I must consider if that fault resulted in an injustice for which the Council should provide some resolution.
26. The Council considered the application for the Certificate by researching the Use Classes Order and by looking at how many people the applicant expected to live at the house. It applied the law. It has no duty to invite comments from neighbours because it cannot reject the application on the objections of neighbours to the use. The Council is not considering whether the use is a use it wishes to approve. It must consider if the applicant has shown the use intended is not development as set out in the Town and Country Planning Act and the Use Classes Order. In the officer’s professional judgement both uses fall within Use Class C3. Senior officers agreed having considered the case officer’s report and the legal precedents set out in that report. I cannot challenge the professional judgement of officers who have considered all relevant information. The Council had no legal duty to consult with residents. I find the Council considered the application without fault having before the officers all relevant information.
27. It is confusing for the public that where a person applies for planning permission to change the use of a house councils give publicity to allow neighbours to comment on the application. However, that is not part of the legal procedure councils must use to decide certificate applications. Some councils do tell neighbours but usually only where they need to gather information about say the historic use of a property. The Council did not need to do that here it clearly understood the house’s historic use was as a dwelling.
28. The Council has anti-social behaviour powers it shares with the Police. The Council says the Police have taken the lead in line with their agreed partnership approach which ensures there is no overlap or confusion between different authorities. Incidences of criminal damage such as breaking car windscreens or criminal conduct such as threats of violence or damage are matters best investigated by the Police. Therefore, I find the Council acted without fault in deciding to let the Police take the lead in following up these incidents.

Final decision

29. In completing my investigation, I find the Council acted without fault.

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Investigator's decision on behalf of the Ombudsman