Summary: We will not investigate this complaint about the way the Council refused Mr X’s application for a certificate of lawful development. This is because it is reasonable to expect Mr X to appeal to the Planning Inspector.

The complaint

1. Mr X complains about the Council’s refusal to share its legal advice related to its decision to refuse his application for a certificate of lawful development.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. 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. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

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How I considered this complaint

5. I have considered Mr X’s complaint and the Council’s responses.

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What I found

6. If a developer wants a definitive view about whether a proposed development needs planning permission, they can apply for a Certificate of Lawfulness of Development (commonly known as a certificate of lawful development).

7. In this case, the Council turned down Mr X’s application for a certificate of lawful development. Since then, Mr X has exchanged correspondence with the Council. He wants to submit a fresh application and has asked for ‘feedback’ on the refusal. He also asks to see the legal advice sought by the Council. The Council says the legal advice is subject to ‘legal privilege’.
8. I will not investigate this complaint. This is because Mr X has a remedy in law to appeal the Council’s decision to the Planning Inspector and it is reasonable to expect him use it.
9. Where we consider it reasonable to expect the complainant to use their right to appeal the substantive matter, we would not consider any related matters arising from their ongoing correspondence with the Council.

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Final decision

10. I will not investigate this complaint. It is reasonable to expect Mr X to appeal to the Planning Inspectorate if he disagrees with the Council’s decision to refuse his certificate of lawful development.

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Investigator's decision on behalf of the Ombudsman