Summary: We will not investigate this complaint about the approval of a certificate of lawfulness application. There is insufficient evidence of procedural fault in the way the Council determined the application, and it is reasonable to expect the complainant to have gone to court for a decision on the correct interpretation of the permitted development rules.

The complaint

1. Mrs X complains the Council should not have approved her neighbour’s certificate of lawfulness (CoL) application without conditions, as it was wrong to class a side elevation as a rear elevation. This has resulted in a loss of privacy to her bathroom window.

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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. 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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

4. With regard 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)
5. The law also says we cannot normally investigate a complaint when someone could take, or have taken, the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered:
• information provided by Mrs X and the Council, which included their complaint correspondence.
• information about the application, as available on the Council’s website.
• the Government’s ‘Permitted development rights for householders: technical guidance’ document (the PD guidance).
• the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mrs X disagrees with the Council’s decision to approve their neighbours CoL application.
8. 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 whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
9. On balance, I consider there is insufficient evidence of fault in the way the Council determined the application, so we will not start an investigation. I acknowledge what Mrs X highlighted in her Stage 2 escalation request: that the elevation is annotated as the side in the original plan for the house; the existing windows have obscure glazing; and advice in the PD guidance about principal and front elevations. But the Council has explained, also with reference to the PD guidance, as well as the plans submitted with the application, why it was considered to be the rear elevation. Ultimately, this is a professional judgement the Council was entitled to reach, even if Mrs X disagrees with it.
10. If Mrs X wishes to challenge the Council’s interpretation of the permitted development rules, then that is a matter only the courts can decide. With reference to paragraph 5 above, it is therefore reasonable for Mrs X to have gone to court for a ruling on that point.

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Final decision

11. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault in the way the Council determined the application, and it is reasonable to expect her to go to court for a decision on the status of the elevation.

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Investigator's decision on behalf of the Ombudsman