Summary: Mr X complains the Council did not consult about a proposal to change the use of a neighbouring property into a children’s home. He says the Council acted with fault by issuing a Lawful Development Certificate (LDC) and not requiring planning permission. He also says the Council failed to communicate effectively about his concerns. We have not found the Council acted with fault when issuing an LDC. We have found the Council failed to communicate properly with Mr X, which caused avoidable frustration and uncertainty. We have made recommendations to remedy the injustice caused.

The complaint

1. Mr X complains the Council issued a certificate of lawful development for a neighbouring property to be used as a children's home. He says this constituted a material change in use and the Council should therefore have required full planning permission to be sought.
2. Mr X says the Council’s actions mean he and others were not consulted about the change in use. He says this has caused avoidable frustration and anxiety. He also says the Council has communicated poorly, causing further avoidable frustration.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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

6. I discussed the complaint with Mr X and considered information he provided.
7. I considered information the Council provided about the complaint.
8. Both Mr X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.

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Relevant legislation, guidance and policy

Council complaints procedure

9. The Council operates a two stage complaints procedure. At stage one of the procedure, the Council will respond to complaints it receives within 20 working days. It says where there is likely to be a delay, it will notify the complainant to explain why and confirm the new response date.
10. The same timescales and recommended good practice apply to the second stage of the Council’s complaints procedure.

Planning Use Classes

11. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’.
12. Planning permission is usually needed to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
13. Relevant to this case:
1. Class C3(a) covers use by a single person or a family; an employer and certain domestic employees; a carer and the person receiving the care; and a foster parent and foster child.
2. Class C3(b) covers up to six people living together as a single household and receiving care.
3. Class C2 is use as provision of residential accommodation and care to people in need of care (other than a use within class C3 - dwelling houses). This may for example include:
• a hospital or nursing home.
• a residential school, college or training centre.

Lawful development certificate

14. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use (referred to as an “LDC” in this statement) to the applicant.

Material considerations

15. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
16. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
17. General planning policies may pull in different directions. For example, in promoting residential development and protecting residential amenities.
18. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

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What I found

Key events

19. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
20. In February 2022, the Council issued an LDC decision notice. This followed an application for a LDC by Mr X’s neighbour, who wished to use an existing residential property as a home for three children, with care being provided on a shift-pattern basis.
21. The decision notice confirmed the Council decided the proposed use as a children’s home was lawful. The notice also said the current use of the property as a dwelling house fell within Use Class C3(a). The notice confirmed the Council believed the proposed use would fall within Use Class C3(b).
22. Mr X raised concerns about the proposed use as a children’s home, first contacting his Member of Parliament in May 2022 and then writing to the Council. In correspondence to the Council, Mr X summarised his concerns as follows:
1. Mr X said he was writing to raise concerns, on his own behalf and on that of his neighbours, regarding the establishment of a children’s home on his street.
2. Mr X said the applicant’s family no longer lived there and the property would be converted to suit a new purpose. Mr X said the establishment was a business venture, involving both caring staff and children from unknown backgrounds.
3. Mr X sought clarity on the rationale for the decision. Mr X said he had carried out his own research and understood the proposed change of use should warrant a change in Use Class, from C3 to C2, which would require planning permission and consultation. Mr X queried why the Council had not required planning permission in this case.
23. On 30 June 2022, Mr X chased the Council for an update. The Council replied, advising it would consider Mr X’s points and respond.
24. Between 30 June 2022 and 2 December 2022, Mr X sought a response from the Council eight times, writing to the Council or to local councillors, who referred the matter back to the Council. On these occasions, the Council did not respond, or briefly acknowledged Mr X’s emails. On those occasions, it said the delay was due to officer illness and absence, or that it was considering legal advice.
25. On 12 December 2022, Mr X made a formal complaint about the lack of response. He also set out the substantive concerns in more detail. Summarised, Mr X said:
1. Mr X and his neighbours were concerned that establishing a business venture in the residential area would entice others to follow suit. Mr X said this could impact property values and the safety of the residents on the street, including children and the elderly.
2. The Council should have more robust planning procedures in place regarding the establishment of children’s homes. Mr X said placing this type of premises in a purely residential area would increase antisocial behaviour, traffic, noise and police presence. Mr X queried how a children’s home could be established without informing local residents, or conducting a consultation. Mr X also raised specific concerns about the impact on his privacy and amenity from the neighbouring property.
3. Mr X said the Planning Inspectorate had found similar proposed uses unlawful in the past.
26. In late December, the Council told Mr X it would respond by 20 January 2023.
27. Mr X wrote to the Council on 24 January and 29 January 2023, as the Council had not replied. The Council apologised for its delay in responding and said it would provide an update soon.
28. On 2 February 2023, the Council told Mr X it was considering legal advice and it would need additional time to provide a response. The Council said it would respond by 3 March 2023. Shortly after this, the Council told Mr X it would need longer to reply. It said it would respond by the end of March 2023. Mr X reiterated his concerns were:
1. General concerns about the development of a children’s home in a residential area; and
2. How the Council had concluded the proposal was lawful, without the applicant needing to obtain planning permission.
29. The Council did not substantively reply at the end of March 2023. Mr X asked the Council a further three times for its response. The Council told Mr X that IT issues meant it could not access its records fully. It said it would provide a further update when it resolved these issues.
30. On 1 June 2023, the Council responded to Mr X at stage one of its complaints procedure. Summarised, the Council:
1. Apologised for the delay in the Council providing a response to Mr X’s concerns, and his complaint. It accepted its response had fallen below its usual service standards.
2. Set out its understanding of Mr X’s complaint. It said officers had reviewed the documents accompanying the application and had sought legal advice. It said it remained of the view granting the LDC was a sound decision.
3. Said when assessing applications, the Council had to consider whether the proposed use would be lawful. It said it could not consider the benefits or negatives of the proposed use when deciding this type of application. It also said there was no statutory requirement for the Council to consult with neighbours in these circumstances.
31. Mr X escalated his complaint to the next stage of the Council’s complaints procedure on 21 June 2023. On 19 July 2023, the Council responded. Summarised, the Council:
1. Said it upheld Mr X’s complaint about the Council’s delay in providing its response. However, it said it did not uphold the complaint about its decision regarding the LDC.
2. Noted Mr X had referred to a key Planning Inspectorate decision from 2010, which held that a premises used as a children’s home would generally fall within Use Class C2. The Council said applications were considered on their individual merits. In this case, it believed the proposal fell within Use Class C3(b), because there was no material change in how the land was used.
3. Noted Mr X believed there had been a material change of use. Mr X had cited factors such as likely increased movement to and from the premises, by staff, contractors, and emergency services. Mr X had also said the need for the property to be risk-assessed, and for the installation of fire alarms and lockable doors, demonstrated there had been a change in use. The Council said:
1. The property could accommodate a typical family with more than three children and two adults. It said use of the property as a home, for a maximum of three young people and their carers, would not be materially different from the authorised use as a family home.
2. It did not consider that movement to and from the building would be significantly more than those undertaken by a family. Further, any movement would not be enough to result in intensification of use, which would give rise to planning concerns. The Council also said additional fixtures and fittings inside the property would not be matters resulting in a material change of use.
4. Noted Mr X had referenced a statement made by the local MP, which said the Council had issued planning guidance stating all proposals for new buildings for children’s homes would require planning permission. The Council said this was a statement made by the MP, which did not form part of guidance, and was not relevant to its consideration.
5. Noted Mr X had referred to previous case law, which held that children needed to be looked after. The decision had said that a children’s home run by staff on shift patterns could not be considered to fall within Use Class C3(b), because it was not occupied by individuals living together as a family. The carers would have different addresses and would therefore come and go. Mr X believed the Use Class should be C2 because of this. In response to this point, the Council:
1. Said legislation did not require that carers permanently reside in the property.
2. Said it did not consider the movements generated by carers would be materially different to the movements of a family unit, and would not be enough to result in intensification of use.
3. Said Use Class C3(b) included care, which could reasonably be expected to include external bodies visiting a site.
6. Noted Mr X had asked why the planning application checklist document issued with the decision notice stated there had been less than four letters of objection, but also stated that neighbour consultations were not applicable. Mr X queried how there could have been less than four letters of objection if neighbours were not consulted. He also queried why the form mentioned consultation at all, if it was not necessary. The Council:
1. Said there was no requirement to consult on LDC applications.
2. Said the application form checklist was a standard template document, used for all types of applications, suggesting not all fields would be relevant to specific applications.
7. Noted Mr X had said the LDC checklist was not detailed, not providing a summary of risks or considering the character for the area. Mr X said in other parts of the country, such applications were open to scrutiny. The Council said it had fully assessed and considered the matter. It said planning merits were not relevant to deciding a LDC application.
8. Noted Mr X’s concerns about the character of the road and a decrease in property values. The Council said property values were not a material consideration in deciding any application.
9. Apologised for the lengthy delay in issuing its response. It cited increased workload and staffing issues as the main reasons for this.
10. Noted Mr X’s request for a further, detailed assessment of the property and proposal. The Council said it issued the LDC in 2022 and it would only revoke it if the applicant had made a false statement, or withheld material information. The Council said it did not believe this was the case.
32. Following further exchanges of correspondence with the Council, Mr X approached the Ombudsman in August 2023.

Analysis

Decision to issue a LDC

33. Mr X said the Council erred when granting a LDC to the applicant and should instead have required the applicant to seek full planning permission, allowing consultation to take place. Central to Mr X’s assertion was that the children living in the neighbouring house would be permanent residents, but those providing their care would not live there permanently, instead working on a shift-pattern basis. Mr X’s position was that there had been a change in use from a dwelling house, which falls under Use Class C3, to residential accommodation and care provision, which is Use Class C2.
34. In support of his view, Mr X relied upon a judgment set out in North Devon District Council v First Secretary of State 2003 (referred to hereafter as “the North Devon judgement”) which he said shared many similarities with the proposed use of the neighbouring development. In that case, children permanently residing in a property were cared for on a rota basis by non-residential staff. The court held the children could not form a household by themselves, as they were incapable of looking after themselves. It decided a single household did not include non-residential staff. It said living together as a household required that a proper functioning household existed, so both carers and children must reside in the premises. The courts held that, in that case, the correct Use Class was therefore C2, rather than C3. However, the courts also held that there had been no material change of use in that case, so planning permission was not necessary and the proposed use was lawful, even with a change of Use Class.
35. I asked the Council how it had considered the North Devon judgment in its decision-making. The Council said the North Devon judgment was referred to in the applicant’s planning statement and so the Council had considered this when making its decision. The Council also referred me to other Planning Inspectorate decisions, principally a decision from 2007. In that decision, the Planning Inspectorate held that a proposal to allow five children to live together as a single household, with non-residential carers, would be lawful as Use Class C3. The decision also said, even if it transpired that Use Class C2 would be the correct class, there was no material difference in how the property would be used. Planning permission would still not be required. The North Devon judgment was also referenced in the 2007 decision.
36. These decisions were made based on the very specific facts in each of these cases, which will differ from the circumstances here. Nonetheless, I believe they establish some broadly relevant points. These are:
1. There are varied and sometimes conflicting approaches by authorities in deciding whether Use Class C3 or C2 applies in such cases; and
2. Even where the Planning Inspectorate or the courts have found there should be a change in Use Class, this has not always resulted in a need for planning permission. Planning permission may still not be required, if there is no material change in the use of the building. This will turn on the specific facts of the case. This was the finding in the North Devon judgement, cited by Mr X.
37. The Council’s final complaint response sets out its position in this case. I have summarised the Council’s key conclusions in paragraphs 31C and 31E. In brief, the Council decided, in its capacity as local planning authority, that there was no change in Use Class. Of key importance, it also decided there would be no material change in use overall, because there would be no intensification of use. It drew this conclusion from the plans submitted by the applicant, as well as the planning statement submitted by the applicant’s agent, which referred to the North Devon case. I am therefore satisfied the Council considered these matters when making its decision.
38. The Ombudsman cannot decide if the Council was correct in its conclusions, or if a material change in use has occurred. We are not a planning appeals body, which means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether the authority can show it had regard for relevant guidance and information when it made its decision. If we consider it has done so, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
39. I recognise Mr X strongly believes the Council is wrong in its conclusions and that it issued the LDC on an erroneous basis. However, the Council has explained why it believes a material change of use has not occurred, and has pointed to historic decisions that may provide a precedent for its position. The Council can therefore demonstrate there is a basis for its conclusions. Having decided there was no material change in use requiring permission, it concluded it was able to issue a LDC to the applicant. LDCs do not require the Council to consult with neighbours or statutory consultees.
40. Given the above, I have not found the Council at fault how it decided to issue a LDC in this case. As there is no requirement for the Council to consult when issuing a LDC, I have also not found the Council at fault for not consulting on the application.

Communication

41. Mr X first contacted the Council in approximately June 2022. The Council did not provide a substantive response despite Mr X repeatedly seeking one, leading Mr X to formally complain in December 2022. The Council did not respond to Mr X’s complaint at stage one of its complaints procedure within 20 working days, instead responding approximately 96 days later, on 1 June 2023. This was almost a year after Mr X had originally raised concerns. The Council sometimes explained why there was a delay. It said it was seeking legal advice, that officers had been unwell, or that there had been an increase in workloads. On other occasions, the Council did not respond or provide an update. In its final response, it recognised it had communicated poorly.
42. The time taken for the Council to respond is excessive by any measure. I agree with the Council that it was at fault for the way it communicated with Mr X about this matter.
43. This caused Mr X an injustice. The Council’s continued lack of response, over a significant period, caused Mr X avoidable frustration and uncertainty. The delay in responding to Mr X’s complaints also caused Mr X avoidable time and trouble. I have made recommendations to remedy this injustice.

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Agreed action

44. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mr X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Share the findings of this investigation with relevant officers so as to identify wider points of learning.
3. Pay Mr X £250 in recognition of the avoidable frustration, uncertainty, and time and trouble he incurred in pursuing a reply to his concerns.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman