Summary: We will not investigate this complaint about the Council issuing a certificate of lawfulness for the proposed change of use of a property in the complainant’s local area. There is not enough evidence of fault by the Council, and we cannot achieve the outcome the complainant is seeking.

The complaint

1. Mr X complains about the Council granting itself a Certificate of Lawfulness of Proposed Use or Development (CLOPUD) for the change of use of a property in his local area. In particular, Mr X says the application contained false statements, and bias/pre-determination by two Members of the Planning Committee occurred.

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The Ombudsman’s role and powers

2. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. In relation to the first bullet point above, we can 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)

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How I considered this complaint

4. I considered:
• information provided by Mr X and the Council, which included some of their complaint correspondence.
• information about the CLOPUD application and the Planning Committee meeting, available on the Council’s website.
• the Council’s ‘Arrangements for dealing with Code of Conduct Complaints’
• the Ombudsman’s Assessment Code.

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My assessment

5. I appreciate Mr X is unhappy about the proposed use of the property within his local community.
6. But the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the organisation made.
7. I consider there is not enough evidence of fault in the way the Council determined the application to justify starting an investigation. In reaching this view, I am mindful that:
• The Council sought external legal advice on whether it was appropriate to submit a CLOPUD for the proposed use, instead of a planning application, and sought further advice following the Committee resolution but prior to issuing the certificate.
• CLOPUD applications are not assessed against national/local planning policies. Rather, consideration is given to whether the proposed use would fall within the scope of, or is materially different to, the existing permitted use.
• The recommendation report to the Planning Committee summarises the objections to the proposal, and Mr X was also able to speak at the meeting, so Members were aware of the concerns being raised before they reached their decision.
• The Council determined the proposal on the basis of the information submitted with the application at that time. If the actual use, when it commences, is materially different to what was described in the application, then the Council would need to decide if another CLOPUD application or a planning application should be submitted for that actual use. In that regard, I note the Council has committed to assessing (at the start of the use and on a regular basis thereafter) whether the certificate it issued is being adhered to.
• Each case must be determined on its own individual merits, and the Council has explained to Mr X how this application differed to refused applications for similar uses at sites elsewhere.
• The Council determined Mr X’s code of conduct complaint against the two Planning Committee members in accordance with its arrangements for dealing with such matters, and has explained why the Members’ participation in the decision‑making was not deemed to amount to a breach of the code of conduct.
8. Furthermore, we cannot direct the Council to revoke the certificate, so we cannot achieve the outcome Mr X is seeking.

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Final decision

9. We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council, and we cannot achieve the outcome he is seeking

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Investigator's decision on behalf of the Ombudsman