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West Berkshire Council (20 006 423)

Category : Planning > Other

Decision : Not upheld

Decision date : 19 Apr 2021

The Ombudsman's final decision:

Summary: Mr B complained about the Council’s refusal to register an address for a flat he purchased. He considers it asked for unreasonable information which is not supported by its policy. It has caused him significant frustration and time and trouble, in addition to the extra costs of a mortgage. We did not find fault with the actions of the Council.

The complaint

  1. Mr B complained that West Berkshire Council (the Council), in respect of a flat he purchased:
    • refused to register the address;
    • provided incorrect and contradictory advice about how he could obtain an address;
    • applied its policy incorrectly; and
    • failed to explain what Mr B needs to do to register his address.
  2. Mr B said this has caused him a significant degree of frustration, time and trouble. He is also paying more for his mortgage until the property address can be registered.

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The Ombudsman’s role and powers

  1. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
  2. 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)
  3. 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

  1. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.

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What I found

Street Naming and Numbering Policy

  1. This policy says that the Council has the power to approve or reject property addresses submitted by developers, agents or the general public.
  2. Under the heading Criteria for Addressing a Property the policy says:

When making an application for a plot or development to be numbered, the developer must provide the following information:

    • Planning Application Reference Number – Street Naming and Numbering for a development can only be administered subject to approved planning permission, and without this no address will be allocated [unless justification can be supplied].
  1. The section in brackets is found in the policy sent to me by the Council but is not in the copy available on the Council’s website.

Planning permission

  1. The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land. A full planning application should be submitted for retrospective planning permission or a change of use of land or buildings.

Certificate of lawfulness of existing use or development (CLEUD)

  1. Anyone can apply to the local planning authority to obtain a decision on whether an existing use or development is lawful for planning purposes or not.
  2. If the local planning authority is satisfied that the appropriate legal tests have been met, it will grant a lawful development certificate.
  3. Lawful development is development against which no enforcement action may be taken and where no enforcement notice is in force or for which planning permission is not required. This means in terms of a particular class of use, a person has to provide evidence to show that the alleged use has been in operation continuously for four years.
  4. In the case of applications for existing use, if a local planning authority has no evidence itself, nor any from others, to contradict or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application, provided the applicant’s evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate on the balance of probability.
  5. A CLEUD cannot be applied for where breaches of listed building controls are alleged.
  6. An applicant can appeal to the Secretary of State against a refusal of a CLEUD.

What happened

  1. Mr B bought a flat in a listed building in 2019. The property did not have its own postal address and Mr B was paying a higher interest rate on his mortgage pending a successful address registration for the property. In March 2020 he applied to the Council to register an address for the property. The Council requested details of the relevant planning permission for the property.
  2. Mr B replied saying the building was constructed around 1900 so predated planning legislation and did not require planning permission. He wanted to register the flat as residential and did not consider there was any evidence it had ever been in commercial use.
  3. The Council requested plans and details of the address. Mr B provided a plan of the flat and provided the address used by the land registry and building control.
  4. The Council looked into the planning history of the flat. It wrote to Mr B on 20 March 2020 to say the property did not appear to have planning permission for residential use as a separate dwelling and an address could only be given once planning permission for residential use was established. The Council advised Mr B to apply for a CLEUD. It explained that some of the planning history indicated the flat may have had an ancillary use to a restaurant and when the flat was sold off from the restaurant the correct planning permission was not applied for.
  5. Mr B provided a copy of a council tax bill provided by the previous owner to support his view that the flat had been in residential use for some time. The Council said it was insufficient to show the property had residential use but might be useful evidence to support a planning application to show it has been in residential use.
  6. In April 2020 the Council advised Mr B to apply for either full planning permission or a CLEUD to regularise the planning status of the property. Mr B submitted a planning application to remove the ancillary aspect of the flat and said it had not been used ancillary to the restaurant for over a year. He asked for a copy of the planning application showing the flat was ancillary to the restaurant.
  7. During May 2020 the Council had further discussions with Mr B over the planning history. Mr B said the flat was not shown in the planning application as ancillary to the restaurant. Subsequent planning applications showed the flat as an office, but not accurately drawn.
  8. The Council advised Mr B to submit a full planning application for change of use from office to residential, in addition to a listed building application. The Council said he could not apply for a CLEUD on a listed building. It advised him to employ a planning agent to assist him and said any application may need to be retrospective to cover any unauthorised work to a listed building.
  9. Mr B submitted a document showing a plan of his flat as residential in 1964. He made a second application for the address registration on the basis that his flat was in residential use in 1964.
  10. The Council said it could not find any planning application for the property stating it had residential use; it could only find documents suggesting it was in office use. It repeated its advice to submit a full planning application. Mr B disputed the flat was shown as an office on any of the planning applications highlighted by the Council and provided more anecdotal evidence that the flat had always been in residential use.
  11. Mr B continued to question why he needed to provide proof of any planning permission given the age of the building which pre-dated planning laws. He submitted two further applications for an address, once as residential and one as commercial. The Council advised again he should use a planning agent and obtain planning consent for a dwelling. Mr B questioned what use he would be applying for given that it was currently a dwelling.
  12. The Council said it was not willing to register an address for a property where its use and status was unknown. It said it was unwilling to take the risk of providing an address if it was a means of circumventing other legislation such as planning.
  13. At the end of June 2020 Mr B supplied further evidence that the flat had always been residential, was as old as the building itself and had been liable for council tax for decades.
  14. In July 2020 Mr B made a formal complaint about the Council’s refusal to register an address, even though in his view it did not contravene planning legislation. The Council responded in August 2020. It acknowledged there had been a considerable amount of confusion regarding the property, particularly due to its age and the lack of records to confirm its use. But it considered that some of the confusion had occurred because planning officers had been going beyond the service normally provided to a duty planning enquiry. The enquiries and research should have been done by a planning agent, as the Council had previously advised. It did not uphold the complaint.
  15. In August 2020 Mr B submitted an application for a CLEUD. The Council took legal advice as to whether the information provided by Mr B was sufficient to grant the certificate. It asked Mr B to agree an extension to allow the Council to continue looking into the matter. Mr B declined and the Council issued a refusal notice.
  16. Mr B complained to the Ombudsman in October 2020.
  17. In February 2021 the Council advised Mr B he had three options:
    • Appeal the refusal to grant a CLEUD.
    • Submit a new application for a CLEUD with more evidence.
    • Submit a full planning application for residential use of the dwelling.
  18. Mr B appealed against the refusal and the appeal is ongoing.

Analysis

  1. Mr B has appealed against the refusal of the CLEUD application. I cannot consider anything relating to this matter after he made the application, as that is now a matter for the Secretary of State.
  2. However, Mr B’s contention is that he should not have had to obtain a CLEUD or planning permission, in order for the Council to register an address for the property. He says the property predates planning legislation, has been used as a residential flat since at least the 1960s, there is no evidence of any other use and it is not in breach of any planning legislation.
  3. The decision on whether to register an address is one for the Council to make based on the available evidence and in accordance with its policy. It makes clear in its policy that an application to name or number a property can be made by a member of the public. But the policy appears to be directed towards developers creating new properties and does not directly cover older properties such as Mr B’s. However, it states that it will not register an address unless evidence of a planning permission is supplied. One version of the policy provides for some discretion if adequate justification can be supplied for the lack of a planning permission and I would expect that caveat to apply to consideration of cases where exceptional reasons exist. I also hope the Council ensures both versions of its policy are consistent.
  4. I cannot criticise the Council for insisting on a valid planning permission in order to register a property for an address. As it explained to Mr B, it does not wish to provide a route for people to circumvent planning law and create residential property without the proper controls in place. It is unusual that the planning status of Mr B’s property is so unclear and that it was not clarified as part of the conveyancing process. But that does not mean Mr B is not required to satisfy the Council that the property has planning permission for residential use as a single dwelling.
  5. I cannot find fault with the actions the Council took prior to Mr B submitting a CLEUD application: it researched the planning history, considered the information Mr B provided and advised Mr B how to move forward. Some of the information it found was inconclusive: for example the evidence that the flat was ancillary to the restaurant was ambiguous and none of the plans for offices included the correct location or dimensions of Mr B’s flat. But I do not consider these issues were fault which caused Mr B an injustice. They were rather the consequence of the ambiguous status of the flat and the lack of a clear documented planning history.
  6. As the Council has advised, the correct way to proceed would be to regularise the property’s planning status by an application for planning permission or a CLEUD. Mr B pursued the latter option to appeal and the matter will be decided by the Planning Inspector on behalf of the Secretary of State.

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Final decision

  1. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.

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Investigator's decision on behalf of the Ombudsman

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