Summary: We found fault on Mr Y’s complaint about the Council’s delay posting him a copy of an application form for a Certificate of Lawful Use and Existing Development. It also failed to deal with his initial complaint according to its complaints procedure. The apologies the Council gave him remedied any injustice caused. There was no fault on his remaining complaints.

The complaint

1. Mr Y complains about the Council:
1. delaying sending him a postal application form to apply for a Certificate of Lawful Use and Existing Development (CLUED);
2. serving an enforcement notice on him despite the CLUED application addressing the same issues;
3. failing to use discretion to amend, waive, relax, or extend the time periods for compliance with the Enforcement Notice; and
4. suggesting changes to his application which he did not apply for.
2. As a result, these failures cost him £1,156 to appeal the Enforcement Notice, caused a great deal of stress, and put him to time and trouble. In addition, he claims he was only given 8 working days to lodge an appeal which did not allow him time to gather the evidence needed for it.

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The Ombudsman’s role and powers

3. 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(1), as amended)
4. 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)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

6. I considered evidence provided by Mr Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of the draft decision to Mr Y and the Council.

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What I found

Law and policy

Certificate of lawfulness

7. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so does not need planning consent. If the council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
8. This may happen where:

• the council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.

9. A local planning authority may choose to issue a lawful development certificate for a different description from that applied for, as an alternative to refusing a certificate altogether. The guidance states it is advisable to seek the applicant’s agreement to any amendment before issuing it. (Government guidance Lawful Development Certificates: Paragraph 009 Reference ID: 17c-009-20140306: revision date 6 March 2014)

Enforcement

10. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
12. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
13. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework December 2024, paragraph 60)

Planning Enforcement Options

14. Councils have a range of options for formal planning enforcement action available to them, including:

• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it, and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already decided necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the council may seek an order to restrain an actual or expected breach of planning control.

What happened

15. Mr Y has portacabins, caravans, containers, and construction material on his land. He has no planning consent for their storage there. He also had a septic tank drainage system, with water and electricity connected to the portacabins and caravans.
16. The evidence showed the Council served him with a previous Enforcement Notice (Notice 1) in 2022. This was about a static caravan on his land which he used for residential purposes. His appeal against Notice 1 was dismissed. As Notice 1 had not included the whole site, Mr Y simply moved the caravan outside the area shown on the Notice.
17. In early 2024, the Council received a report of Mr Y placing a portacabin on his land without planning consent. The Council asked him to remove it and Mr Y refused.
18. In early June, Mr Y asked the Council for a postal application form so he could apply for a Certificate of Lawful Use and Existing Development (CLUED).
19. In early July, he was unhappy when he was told it did not send application forms out. The Council directed him to its website to make an application.
20. In August, he applied online for the CLUED (application 1). In it, he claimed the storage use started more than 10 years earlier. The Council rejected it two days later because he failed to provide a planning statement and written evidence from neighbours about the period of time covered, for example. Mr Y confirmed he would send the necessary information. The Council asked him to clarify the timescale as it did not keep invalid applications open for indefinite periods of time. One option was to withdraw it and re-apply. The Council would refund his fee.
21. I have seen a copy of a planning Expediency Report (the Report) written the same month. The Report considered:

• whether the Council should take formal enforcement action, informal action, or close the case with no further action;
• some of the history of the site and the earlier report received about the portacabin;
• Notice 1 and the evidence set out on a previous Lawful Development Certificate which made no mention of a portacabin or static caravan on the land;
• discussions with colleagues which concluded it unlikely the Council would support a CLUED application;
• the Council had sent him two informal letters to advise it should be removed but he had failed to comply; and
• previous non-compliance about the caravan and recent requests to remove the portacabin.

22. The Report recommended serving an Enforcement Notice giving compliance until mid-December.
23. In September, Mr Y withdrew application 1. About two weeks later, he sent application 2. This was a hard copy using forms from the Council. He claimed the portacabin was lawful as it had been on his land continuously for more than 10 years. This was disputed by the Council. The same day, the Council told him application 2 was invalid as he failed to provide the necessary documentation in support which Mr Y did not accept. The Council considered application 2 would not succeed.
24. At the end of the month, the Council issued Mr Y with an Enforcement Notice (Notice 2). The following day, it validated application 2. Notice 2 told him he had until 4 November to make an appeal to the Planning Inspectorate should he choose to do so.
25. In November, the Council wrote to Mr Y explaining its initial view on application 2 was to refuse it. It suggested he might consider sending further information, for example. Mr Y responded and the following month, the Council explained while it was now validated, it did not stop the Council from asking for more information. It could not grant application 2 because it included land which was covered by Notice 1. It suggested he considered taking independent advice if unclear about what to send.
26. Mr Y asked the Council to waive or relax its Notice 2 provisions to allow him time to comply, but this was refused. He wondered why, when it was aware, or should have been aware, he was making a CLUED application, it issued Notice 2 as the application would have addressed the concerns set out in it.
27. Due to the Council taking 13 days to respond to his query about why it had issued Notice 2, he claimed this left him with only a week to make his appeal. Mr Y appealed Notice 2 which cost him £1,156.
28. Mr Y was unhappy when a Council officer suggested application 2 could be modified by adding a residential and ancillary use clause for a portacabin from a storage use. This was despite him not applying for it. The officer then said she was minded to refuse the application for residential use. In its response to our enquiries, the Council explained it told Mr Y the description of the existing use on application 2 did not accurately reflect the use of the land and considered whether it should modify or substitute the use. While it had the legal power to do this, the Council decided it would still refuse the application anyway
29. In December, he sent his stage 1 complaint to the Council under its complaints procedure.
30. In April 2025, the Council refused application 2. This was because the evidence provided was not precise enough to show, on balance, that the use of the site as described fell within Use Class B8 (storage/distribution centre). In addition, part of the land was subject to Notice 1. Planning law does not allow the granting of a CLUED where it would conflict with an active Enforcement Notice.
31. In July, the Council sent him its stage 1 response to his formal complaint. It apologised for the delay in responding to it. It explained it adopted a ‘digital first’ approach to applications and forms to improve effectiveness and efficiency. This is why it does not usually provide paper forms. These are only sent as a last resort, in exceptional circumstances.
32. In September, it sent him its stage 2 complaint response. It apologised for the delay in sending him a paper copy of the application form and would ensure copies were sent out in a timely way in future. It apologised for the delay with responding to his stage 1 complaint. It did not uphold any other aspect of his complaint.

My findings

Complaint a): Delay sending him application form

33. Mr Y complained about the delay with the Council sending him a hard copy of the CLUED application form when requested to do so.
34. I found the following on this complaint:
1. The Council needed to have procedures in place so that when appropriate, officers had the discretion to send out hard copy application forms instead of requiring members of the public to apply online or print them off themselves. Not all members of the public have access to computers and printers. Those that do may have difficulties, for various reasons, navigating round a website, completing an application online, uploading documents in support, or printing forms.
2. The Council has already apologised for the delay sending him hard copies of the forms. While the delay was fault, I am not satisfied this caused Mr Y a great injustice. This is because:

• there was no evidence he asked for a hard copy for a particular reason. There was nothing to show, for example, that he asked for it because he was having computer problems, difficulties with uploading documents, problems printing, or could not complete it online due to health or disability issues.
• he went on to complete an online application (application 1). There was no mention this had been a struggle for him or that he had to get someone else to help him with it, for example. This application was rejected because he had failed to provide all necessary information needed for the Council to validate it.
• Mr Y could have tried to print the forms himself from the Council’s webpage, complete them, and post them as hard copies. I note the website explained forms are available to download which can then be printed off by the applicant, completed, and submitted. I do not know whether this information was on its website at the time he made his request but it was still an option for him.
• The Council sent him a hard copy which he completed and submitted. Again, this was considered invalid because he failed to submit the supporting documentation needed.

Complaint b): Service of the Enforcement Notice

35. I found no fault on this complaint. At the time the Council prepared the Report, Mr Y had not made a valid CLUED application. I am satisfied the evidence showed the Council properly considered whether it needed to take formal enforcement action against Mr Y. This was shown by the Report which considered the history of the site, Notice 1, and non-compliance. There was nothing that required the Council to wait until application 2 was decided before issuing Notice 2.

Complaint c): Refusal to amend, waive, relax or extend period for compliance

36. I found no fault on this complaint. I have seen no evidence of Mr Y making any such request. What I do note is any request would have gone against the conclusions of the Report. This was because it referred to discussions with officers and concluded it was unlikely a CLUED application would be granted.
37. Mr Y was made aware of the date by which he had to appeal and indeed lodged his appeal. I find no fault or injustice on this complaint.

Complaint d): Suggested changes to application 2

38. I found no fault on this complaint. This is because the law allows the Council to do this if considered appropriate. I note the Council did not make changes to the wording of application 2 anyway.
39. I found fault with the Council failing to deal with his complaint according to its complaints procedure. Under it, he should have received a response under stage 1 within ten working days which could be extended by another ten working days.
40. This meant his stage 1 request sent on 24 November 2024 should have been responded to by 6 December. Instead, it was sent on 11 July 2025, about seven months later. This failure was fault. While this caused him injustice, as he was understandably frustrated by the time taken to respond, I am satisfied the Council’s apology provides a sufficient remedy in these circumstances

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Decision

41. I found the following on Mr Y’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman