The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s 2017 decision to grant a Certificate of Lawful Development to a nearby industrial site. The complaint is late. There is not enough evidence of Council fault to justify an Ombudsman investigation of the matter now. Mr X can submit to the Council any evidence he has about the site’s certification which he considers should result in different decision, and it would be reasonable to ask the courts to decide any question of the Council’s interpretation of planning law relevant to the site.
- Mr X lives near, and owns another property next to, an industrial site. The site is a former farm. Mr X says the site has been used to store and recycle waste metal since 2017.
- Mr X complains the Council:
- failed to notify him of a Certificate of Lawful Development (CLEUD) application made by the site’s owners in 2017;
- took account of inaccurate information when granting the CLEUD;
- failed to place conditions on the CLEUD which had been put on the site’s earlier planning permission;
- failed to reply to his wife’s query about the site’s activities in 2018;
- failed to respond to his July 2019 email asking why he had not been notified about the CLEUD.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- it would be reasonable for the person to ask for a council review or appeal, or
- there is another body better placed to consider the matter.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- As part of my assessment I have:
- considered the complaint and the documents provided by Mr X;
- viewed relevant online maps and CLEUD documents;
- issued a draft decision, inviting Mr X to reply, and considered his response.
What I found
- The site’s owner applied for the CLEUD in 2017, for B2 (general industrial) and B8 (storage and distribution) uses. The Council considered the application and granted the CLEUD.
- Mr X says his wife contacted the Council about activity on the site in early 2017 but got no reply. Mr X says his wife then did an online search almost two years later in late 2018. She discovered the Council had granted the CLEUD in 2017.
- Mr X has been aware of the CLEUD, the subject of his complaint, since late 2018. He complained to the Ombudsman in March 2020, over 12 months later. The Ombudsman expects people to come to him within 12 months of them becoming aware of the subject of their complaint. That is the point from which the 12-month period starts. The evidence shows Mr X knew about the CLEUD for over 12 months before he complained to the Ombudsman. This means complaint issues a) to d) are late. I have gone on to consider whether there are good grounds for the Ombudsman to investigate these late complaints.
- Mr X complains the Council did not notify him of the CLEUD application in 2017. Unlike planning permission applications, there is no requirement on councils to notify people about CLEUD applications. Some councils choose to notify residents, but there is no duty. I have not seen evidence that this Council undertakes to send CLEUD notifications. But in any event, I do not consider there is good reason for the Ombudsman to investigate this complaint now. If the Council had notified Mr X of the CLEUD, he could have submitted evidence about the matter. But I do not consider the Ombudsman could make a finding that this evidence would have changed the outcome of the CLEUD application in 2017.
- Mr X’s key concern is the firm’s waste metal recycling which he says did not start until 2017. The Council considers the recycling falls under a B2 ‘general industrial’ use class. The decision for the Council to make on the B2 part of the CLEUD was whether B2 use activities of any kind had been undertaken continuously on the site for 10 years. The Council did not have to be satisfied that metal recycling had happened on the site for 10 years.
- Officers decided the evidence received was sufficient to show it was more likely than not the firm had been conducting activity on the site which fell under the B2 use class for over 10 years prior to the application. There is not enough evidence of fault in how they reached that professional judgement decision to warrant an Ombudsman investigation.
- I recognise Mr X disagrees with the Council’s decision. A council can revoke a CLEUD if new evidence is made available which gives grounds for it to do so. If Mr X believes he has evidence that the firm has not been continuously conducting B2 class use activities on the CLEUD site for the relevant 2007 to 2017 period, he should give it to the Council. It would be for the Council to consider Mr X’s information and decide what, if any, action to take regarding the CLEUD.
- As the outcome to his complaint, Mr X initially said he wanted the Ombudsman to tell the Council to revoke the CLEUD. The Ombudsman cannot order councils to take action, so could not achieve that outcome. Mr X has changed his requested outcome and wants the Ombudsman to recommend to the Council to reconsider the CLEUD application. But as explained above, Mr X can submit to the Council evidence he has regarding the firm’s B2 class use of the land. Mr X can get the outcome he now seeks directly from the Council. The outcome is available to him, so it does not give a good reason for the Ombudsman to investigate his late complaints now.
- I recognise Mr X may dispute the Council’s position that the metal recycling on the site falls under the B2 class land use. This was an issue raised by his solicitor in 2019. The Ombudsman cannot make a finding that it is fault for the Council to decide the recycling is a B2 use. That is a matter for the officers to decide using their professional judgement. If Mr X wants to challenge the Council on the grounds the recycling should not be covered by the B2 part of the CLEUD, that would be a matter for the courts to determine. Mr X may wish to seek independent legal advice before pursuing that route.
- Mr X says he contacted the Council in July 2019 to ask why it had not notified him of the 2017 CLEUD, but no officer replied. This is a concern about the Council’s complaint handling. The Ombudsman will not investigate complaints about councils’ internal complaint processes or handling of correspondence when he is not investigating the core issues which gave rise to the complaint.
- I realise Mr X has ongoing concerns about the operations in and around the site. These include noise, odours, increased vermin and pieces of metal blowing on to his property. The part of the site and the activities undertaken there covered by the CLEUD are not under planning control. There is no action the Council can take using the planning system to respond to these issues while the CLEUD is in place. However, Mr X’s concerns are also environmental health matters. He may wish to report incidents to the council department which deals with those issues. It would then be for its officers to decide whether to take further action against the site’s operators or owners using environmental health powers.
- I understand Mr X considers the site is unsightly. But unlike with planning permission applications, the CLEUD process does not involve any consideration of impacts on amenity of neighbouring properties. The only question for a council determining a CLEUD is whether the land use applied for has been in place on the specified site for the relevant time period.
- Mr X also says the site devalues his property. But claimed devaluation of an existing property is not a material issue within the CLEUD process, nor indeed within the planning process.
- I note Mr X also says lorries visiting the site have damaged his verges. If Mr X considers someone has caused damage to his property, that would be a private civil matter. Mr X may wish to seek independent legal advice on this issue.
- The Ombudsman will not investigate this complaint. This is because the complaint is late and there are no good reasons to investigate it now. I have reached this view because:
- there is not enough evidence of fault by the Council to warrant an Ombudsman investigation;
- it would be reasonable for Mr X to ask the Council to review any evidence he has about the firm’s B2 class land use during the relevant CLEUD time period;
- it would be reasonable for Mr X to ask the courts to decide any question of the Council’s interpretation of planning law relevant to the site.
Investigator's decision on behalf of the Ombudsman