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Wiltshire Council (18 010 042)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 06 Jun 2019

The Ombudsman's final decision:

Summary: The complainant says the Council failed to consider all relevant information when deciding to grant a certificate of lawfulness of use. The Council accepts it failed to upload some evidence on its website preventing the complainant from commenting on it but says the evidence was not crucial to its decision. It says having considered the complainant’s rebuttal of that evidence it would not have changed its decision. The Ombudsman finds the Council acted with fault however, this is unlikely to have resulted in a different decision.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complains when considering an application for Certificate of Lawfulness of Use the Council failed to:
    • Ensure it uploaded the applicant’s second statutory declaration onto its website or tell Mrs X about the information it contained;
    • Provide Mrs X with an opportunity to challenge the officer’s view of the application (an officer having said it looked like it would fail);
    • Ensure Mrs X had the opportunity to present evidence that may have changed the final decision by challenging the information in the applicant’s second statutory declaration.
  2. Mrs X says the Council failed to follow due process and decided the application without all relevant information. But for that fault Mrs X believes the Council would have refused the application and prevented the continued use of land near her home. Mrs X wants the Council to accept fault and pay compensation.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If satisfied with a council’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

  1. In considering this complaint I have:
    • Contacted Mrs X and read the information presented with her complaint;
    • Put enquiries to the Council and reviewed its responses;
    • Researched the relevant law, government guidance and local policy;
    • Shared with Mrs X and the Council my draft decision and reflected on the comments received.

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What I found

  1. Section 291 of the Town and Country Planning Act 1990 allows anyone to apply to a council (as local planning authority) to find out whether:
    • Any existing use of building or land is lawful;
    • Any operations carried out on the land are lawful; or
    • Any failure to comply with a planning condition or limitation is lawful.
  2. The Council may issue a certificate to say the development or use is lawful. The term ‘certificate of lawful use or development’ is used to describe both certificates of lawfulness of existing use or development (CLEUDs) and certificates of lawfulness or proposed use or development (CLOPUDs). I shall refer to this as the Certificate.
  3. A development can be certified as lawful because there has been no breach of planning control (for example, it was permitted development), or because the time to take enforcement action has expired. The use approved by the Certificate must not constitute a contravention of any enforcement notice or breach of condition notice then in force.
  4. If the Council acting as local planning authority is provided with information satisfying them of the lawfulness of the use, the Council must issue a Certificate. The lawfulness must then be “conclusively presumed”.
  5. Councils may need evidence to resolve disagreement over questions of fact.
  6. Councils may not consider the impact of the use on the amenity of neighbours when deciding if it should grant a Certificate. The Certificate confirms the legality of the use. Therefore, the law does not allow councils to impose conditions limiting the use as it does when councils grant planning permission.
  7. The onus of proof is on the applicant and the evidential test is the balance of probability. The Council must decide whether to grant the Certificate not on the planning merits of the case but on the facts available. The Council must decide whether the evidence available is enough to allow it to decide the application on the facts one way or the other.
  8. The law does not impose any duty on councils to consult or tell neighbours about applications for a Certificate. However, the Council’s policy on applications set out in its Statement of Community Involvement says it will publicise applications for Certificates in the same way it publicises planning applications.
  9. The government’s Planning Practice Guidance says the applicant is responsible for providing enough information to support the application. The Council may seek evidence from others who may have information about the land. Councils do not have to consult third parties. Where they do, the Guidance says any third party’s view on whether the applicant has any private rights to carry out the use is irrelevant.
  10. The Planning Practice Guidance gives the applicant a right to see any evidence from third parties so the applicant can respond to it. However, the Guidance does not give third parties a similar right to see and respond to the application or the applicant’s challenge to their evidence.

What happened

  1. Mrs X says that in 2014 she noticed someone had begun leaving a caravan on land near her home. Before this Mrs X says the land had been empty. The number of vehicles, plant and machinery stored, she says, increased rapidly. Mrs X said it created an unsightly area from which Mrs X suspected the man controlling it whom I shall to as Mr Y, ran a business. The land is subject to a restrictive covenant forbidding such use. In 2016 Mrs X complained to the Council about the unauthorised use of the land.
  2. The Council’s planning enforcement team considered Mrs X’s complaint by visiting the site and making some enquiries. The enforcement officer decided using the land to store vehicles was unauthorised. The Council wrote to Mr Y asking him to remedy the breach of planning control by removing the unauthorised items.

The application for a certificate

  1. In response Mr Y applied for a Certificate to confirm the lawfulness of his use of the land. In his application Mr Y said he began storing vehicles, plant and machinery on the land more than ten years before. Therefore, he argued, the Council could not take enforcement action against him. Mr Y said he used the land for storing vehicles, plant and machinery before he bought the land in 2004 and had continued doing so since.
  2. The Council wrote to the local parish council but received no objections to the application. It also wrote to neighbours including Mrs X telling them the Council had received the application and inviting comments.
  3. The Council uploaded the application and the statutory declaration Mr Y presented with it on to its website as part of the publicity given to the application.
  4. In the statutory declaration Mr Y said he had stored vehicles on the land for many years before he bought it and had used it for over ten years.
  5. Mrs X wrote to the Council in response to the application. Mrs X provided evidence including aerial photographs and information from her sellers’ pack that Mrs X argued showed the land did not have any vehicles stored on it until 2014.
  6. In line with government guidance the Council shared this information with Mr Y. In response to Mrs X’s evidence Mr Y presented a further statutory declaration.
  7. In the second statutory declaration Mr Y explains why aerial photographs of the area show little or no storage on the land. He says the vehicles on the land changed, some items were too small to appear on the photographs and some would be hidden by foliage or in winter months by covers placed over them. Mr Y also said he had been away from the area for some time but had left items stored on the land during this time. The Council says this second statutory declaration did “not provide any substantive new information in support of the application.”
  8. This second statutory declaration did not appear on the Council’s website. Unaware of this second statutory declaration Mrs X could not present any evidence in rebuttal.

The decision on the application for a certificate

  1. In the case officer’s report of August 2017, the Council records receipt of two letters giving evidence of the lack of stored vehicles on the site before 2014. It sets out a summary of the information presented in those letters. The Council received three letters supporting the application which Mrs X says came from relatives of Mr Y. The report says officers spoke with Mr Y’s agent who explained Mr Y uses the site for hobby purposes. He buys and sells machinery as part of his hobby and not for financial gain or as a business. Therefore, Mr Y asserted the use was not as a commercial business.
  2. The case officer considered the two statutory declarations, letters in support of the application and the letters opposing the application including the information presented by Mrs X. The case officer decided on the balance of probabilities Mr Y had stored vehicles, plant and machinery on the site for over ten years. Mr Y had shown he bought the land over ten years ago and had presented evidence to support his use. In the case officer’s judgement, the applicant had therefore produced enough evidence to show the Council should grant the Certificate. If refused Mr Y could appeal. The Council granted the Certificate and therefore could not prevent Mr Y continuing with the use.
  3. Mrs X believes the information presented by Mr Y did not offer a strong rebuttal of her evidence. Mrs X says had she been aware of what he had said she could have rebutted it. Mrs X has since presented her rebuttal to the Council. Mrs X believes the Council gave too much weight to the statutory declarations as opposed to her letters and failed to recognise some of Mr Y’s supporters are in fact his relatives. Mrs X does not believe the case officer tested the evidence presented robustly enough to reach a proper decision.

Analysis – was there fault causing injustice?

  1. My role is to consider the procedure by which the Council decided the application not the merits of the application. It is therefore not for me to say if Mr Y had proved he had used the land for over ten years.
  2. Restrictive covenants and other legal limits on the use of land are not relevant when deciding applications for planning permission or certificates. The grant of planning permission or a certificate does not affect their legality or prevent others enforcing them in the courts. This means the Council could not consider whether Mr Y’s title placed limits on what he could do because it is not authorised by planning law to enforce those limits or take them into its consideration.
  3. Councils have no legal duty to give publicity to applications for a Certificate or share information presented in support of the applications. The Council’s policy is to publicise applications for a Certificate. Where it has such a policy the Ombudsman expects it to follow that policy. The Council failed to upload the second statutory declaration contrary to its publicity policy. I find it acted with fault in doing so.
  4. Publishing the second statutory declaration on the website would have enabled Mrs X to present further evidence to rebut what Mr Y had said. This failure denied her that opportunity. However, the law does not give third parties a right to be consulted and so she has not been denied any right given by planning law.
  5. The Council in responding to the complaint says the information given in the second statutory declaration adds little to the evidence given in the first. It says it is likely therefore the information did not affect the final decision. The law allows the Council to decide the application for the Certificate without recourse to third parties who have given information as part of that process.
  6. The decision on whether using the balance of probabilities a Certificate should be granted is a matter of professional judgement delegated to the planning officer. The planning officer had not been involved in the enforcement investigation. The planning officer considered all the evidence presented by both Mrs X and Mr Y. It is for the decision maker to weigh up the evidence and decide what weight to give to that evidence exercising their judgement. It is also for the decision maker to decide if he or she needs to gather further information. It is not for the Ombudsman to substitute his judgement on the merits of the evidence for that of the decision maker.
  7. Mrs X did not have a right of reply to any information provided by the applicant under planning law. The Council says the second statutory declaration did not form a deciding reason for granting the Certificate. We can never know if but for the fault Mrs X’s view might have persuaded the Council to a different view. However, given the decision maker’s view of whether this information would change the decision, I find this is unlikely. Therefore, I find the Council at fault but on the balance of probabilities it is unlikely this affected the final decision. Therefore, I find the fault did not cause a substantive injustice.

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Final decision

  1. I find the Council at fault in failing to follow its policy and practice, but this did not affect the final decision. This decision completes my investigation.

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Investigator's decision on behalf of the Ombudsman

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