Summary: Summary: The complainant says the Council failed to properly consider an application for a certificate of lawfulness of use and robustly challenge evidence presented to it. The Council says it considered all the information. The Ombudsman finds the Council decided the application without fault.

The complaint

1. The complainant, whom I refer to as Mr X, complains when considering an application for a Certificate of Lawfulness of use the Council failed to:
• Properly consider the application by gathering and rigorously testing the evidence put forward by the applicant;
• Consult with neighbours and have in place an appropriate procedure for gathering information on which to decide the application;
• Properly respond to points made in his complaint.
2. Mr X says the Council’s grant of the certificate has resulted in the occupier of land near his house using the land for Class B2 uses. A use Mr X says the Council would never have approved if the applicant had applied for planning permission.
3. Mr X wants the Council to adopt an improved certificate of lawfulness of use procedure with rigorous testing of evidence put forward to improve the probity of the Council’s decisions. In commenting on my draft decision Mr X says the Council should ensure a certificate guards against intensification of the use. Mr X also wants the Council to put decisions on certificates to councillors rather than continuing to allow officers to decide applications under delegated authority.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. In considering this complaint I have:
• Contacted Mr X and read the information he has presented with his complaint and afterwards;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, guidance, and policy;
• Shared with Mr X and the Council my draft decision and reflected on any comments received.

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What I found

The law and guidance

8. Section 191 of the Town and Country Planning Act 1990 enables any person to apply for a Certificate of Lawful use 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.
9. Section 191 also enables a person to apply for a certificate to confirm whether:
• Any proposed use of building or other land would be lawful; or
• Any operations the applicant proposes to carry out would be lawful.
10. 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”.
11. Government guidance issued in March 2014 says councils do not have to canvass evidence but may do so. If a council receives third party information, it should share this with the applicant. The Council should give the applicant an opportunity to comment on the information and provide counter evidence. 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.”

12. 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.
13. 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.
14. The Town and Country Planning (Uses Classes) Order 2015 sets out classes of uses in categories such as B1 and B2. Class B1 refers to industrial uses suitable for any residential area. B2 groups general industrial uses which may include heavy machinery. When granting planning permission councils may specify the class of use allowed and restrict use to named uses within a Use Class.

What happened

15. Mr X owns a residential property in a conservation area where his family have lived since 1973.
16. The Council’s records show that in 2001 Council officers visited the site the subject of the complaint to decide if there had been a breach of planning controls. The Council officers decided metalworking on part of the site had continued for over 10 years.
17. Following a further complaint about use of the site in 2016 Council offices again visited the site. The Council’s officers found the property had a long-standing general industrial use with a mixture of work carried out on the site. The Council officers decided occupiers had used this land for this use for over 10 years. In their site visit notes the Council’s officer say the occupier had erected a simple building. It did not have planning permission, but the Council officers decided this did not cause any harm to the amenity of the area. Therefore, they did not recommend enforcement action. However, the note also says the Council ‘…did not want to legitimise a Class B2 Use [general industrial use]…’. The occupier agreed to move noisy machinery to another site.
18. The Council received another enquiry about the site in 2018. In October 2018 Council officers visited the site and took photographs. In November 2018 Council officers advised the occupier to apply for a Certificate of Lawful Use (the Certificate) to confirm the planning status of the land.
19. In 2019 the Council received an application for a Certificate. The application sought a certificate showing the land had a mixed use including uses within Class B2 (general industrial use). To gain the Certificate the applicant needed to show the use began before 4 July 2009, i.e. ten or more years before the application He also needed to show the use had been continuous.
20. The Council has not adopted a formal published procedure for deciding applications for a Certificate. However, the Council follows a settled practice. While this includes advising parish councils of applications it does not include writing to neighbours. The Council considers any objections received and shares those with the applicant for comment. Following that, the Council’s officer writes a report setting out the officer’s professional judgement of the application. A senior officer will then approve the recommendation to grant or refuse the application and, if approved, issue a Certificate under delegated powers.
21. Mr X heard about the application and attended the parish council meeting which discussed it. Mr X wrote twice to the Council in August 2019 setting out his objections to the application and the evidence presented by the applicant.
22. Mr X told the Council he and his family had lived in and known the area for over forty years. Mr X said he had concerns about the impact of the already unacceptable noise from metal processing on the site at weekends and in the evenings.
23. In objecting to the application Mr X said the application lacked specificity. Mr X said some of the applicant’s statements lacked objective proof. Mr X said the Council had not cross-referenced photographs with a timeline. Mr X said he understood the land occupier had removed equipment necessary to carry on the claimed use from the site some years ago. Therefore, Mr X disputed the occupier had carried on the uses continuously on the site.
24. Mr X said the building erected in 2016 had not been on site for four years and so the Council could take enforcement action to remove it. Mr X suggested an alternative to granting the application. Mr X suggested the Council recommend the applicant apply for a Class B1 (industrial workings suitable for any residential area) use of the land. This in Mr X’s view would cover the unauthorised uses carried on at the site for at least 20 years. This use class would prevent the use of heavy machinery preventing a continuation of the noise, vibration and fumes experienced from the site in recent times.
25. The Council planned to decide the application by the end of August 2019. Mr X suggested postponing the decision to allow the Council to verify the applicant’s evidence.
26. The Council passed the comments and objections to the applicant. Council officers followed this up with a discussion with the applicant.
27. The applicant presented the Council with three statutory declarations as evidence of the continuous use, and photographs claiming to show the use.
28. The Council’s case officer wrote a report on the application. In that report he referred to the challenges made to the evidence by Mr X. He referred to Mr X’s view the applicant had only recently erected the current building on site. The report discussed whether the evidence suggested an historic use of the site for the use claimed. The report recommended granting a Certificate for mixed residential and specific B2 use classes named in the report. The report recommended granting the certificate and a senior officer approved that grant on 28 August 2019.
29. When the Council decided the application, the Council’s officers had before them:
• The application;
• The Council’s records of previous visits to the site and photographs taken including a reference to the presence of possible Class B2 uses;
• Three statutory declarations in support of the application;
• Comments from neighbours disputing the facts as set out in the application;
• The Council officer’s report.
30. Councils must consider whether the applicant has proved the site has an established use. The Council says the information in its records, the site visits and photographs plus the evidence presented in the statutory declarations supported the application. The Council decided on the balance of probabilities the applicant had shown the use of the site for over ten years and granted the Certificate.

Analysis – is there fault leading to an injustice?

31. My role is to consider whether the Council decided the application without fault, for example by having before it all relevant information. My role is not to decide the merits of the application for a Certificate or the merits of the evidence gathered.
32. 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.
33. 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.
34. The Council followed its usual practice and is considering adopting a formal procedure for considering applications. This practice enabled Mr X to discover the application and to put forward objections which the Council considered. In line with government guidance it shared those objections with the applicant giving him an opportunity to address those concerns. An adopted procedure gives clarity to the public when they want to understand how the Council decided an application. I welcome the Council’s commitment to adopting a formal procedure. I find that in having a settled procedure the Council is not at fault for failing to have adopted a formal published procedure so far. The lack of a published procedure I find did not cause an injustice.
35. The Council must consider the application before it, not suggest different applications even if it considered Mr X’s suggestions had merit. The evidence showed some mixed uses and Mr X said in his comments there had been Class B1 commercial activity on the site during the previous 20 years. That means some activity may be immune to enforcement action. The Council had to decide if the applicant had shown the uses claimed had been established.
36. 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. The Council had before it all relevant information including three statutory declarations supporting the application and Mr X’s comments rebutting or challenging the applicant’s evidence. 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.
37. Where we investigate the substantive complaint and find no fault, we do not usually look at the Council’s complaints procedure. This is because any fault in that will be remedied by the Ombudsman examining the substantive complaint.

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Final decision

38. In completing my investigation, I find the Council acted without fault in its consideration of the application for the Certificate. Therefore, I cannot challenge the merits of that decision.

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Investigator's decision on behalf of the Ombudsman