Summary: We will not investigate Mrs X’s complaint that the Council advised her to apply for a certificate of lawfulness and then told her to withdraw her application. This is because there is not enough evidence of fault by the Council.

The complaint

1. The complainant, Mrs X, complains the Council provided contradictory advice about applying for a certificate of lawfulness for development in her back garden. She says this caused her stress, time and trouble.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

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My assessment

4. Mrs X developed her back garden in 2021. The Council opened an enforcement investigation to determine whether there had been a breach of planning control and advised Mrs X she should apply for planning permission to retain the development.
5. Mrs X disputed that she had carried out any development requiring planning permission and wrote to provide more detail about what she had done. She concluded by stating “I trust that you would now consider the changes made to our… garden… is in fact ‘permitted development’”.
6. The Council acknowledged it could be argued the development was permitted and advised Mrs X “if it is your wish to ascertain if the operations are lawful and do not require the benefit of formal planning permission, you may submit an application for a Certificate of Lawfulness or Proposed Use or Development.” It later told Mrs X “I think this is a better option and I believe it is half the cost.”
7. Mrs X applied for a certificate of lawfulness but after an initial review of her application the Council told her that the works were unlikely to be permitted development. It therefore told her she would be better off applying for planning permission and it would likely support her application. By advising Mrs X to withdraw her application the Council has sought to save her paying twice to retain her development.
8. Mrs X considers the Council’s advice was contradictory but I do not consider it amounts to fault. The Council initially suggested Mrs X apply for planning permission but Mrs X challenged this and set out her view that the development did not require permission. The Council subsequently confirmed she could apply for a certificate of lawfulness and advised, based on her view that the development was permitted and she should not therefore have to apply for planning permission, that this was the better option to test the point. But there was no guarantee the Council would approve her application and it was ultimately her choice to apply for a certificate of lawfulness rather than for planning permission.
9. It is also Mrs X’s choice about how to proceed in this matter now. The Council has refunded Mrs X’s application fee and advised she should apply for planning permission if she wishes to ensure the lawfulness of the development. But it has also explained she may re-submit her application for a certificate of lawfulness or simply do nothing.
10. If Mrs X still believes the development does not require planning permission she may resubmit her application for a certificate of lawfulness and obtain a formal decision on the issue which would carry a right of appeal to the Planning Inspectorate. If the Council refuses her application and the Inspectorate dismisses any appeal she would then have to consider whether to apply for planning permission or whether to leave the issue unresolved.

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Final decision

11. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman