Summary: the Ombudsman finds that there was fault by the Council in its consideration of a planning application for lawful use of a building. But he did not find this caused injustice to Mr X.

The complaint

1. Mr X complains the Council failed to properly consider an application for a certificate of lawful development of an existing use (CLEUD). He also complains the Council agreed it did not consider the matter properly and recommended revoking the permission, but it then failed to do so. He says the approved use will cause disruption to residents.

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The Ombudsman’s role and powers

2. 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)
3. If we are 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

4. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mr X and the Council had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

5. In 2018 Mr X complained to the Council about a nearby building for which the owner applied for and obtained a Certificate of Lawful Existing Use or Development (CLEUD).
6. A CLEUD is certificate that is granted by a Local Planning Authority (the Council) to retrospectively authorise a previously unauthorised development. The CLEUD certifies that an existing building or use is lawful. This means the Council will not take enforcement action.
7. The Council’s decision on the CLEUD had approved the use of the building for events or functions. The Council had attached a condition to the approval that the building could only be used for a maximum number of functions a year.
8. Mr X complained the Council did not properly consider the application. He said the Council had not consulted and had made an incorrect reference in the report. He said there had been a history of complaints about the use of the building. He did not agree the building had been used in the way it was alleged and to the extent the applicant had stated. He said the Council’s decision meant he would suffer disruption and noise from the events. He accepted the owners needed to run a business, but he was concerned about traffic and car parking.
9. The Council replied that there was no statutory requirement to consult regarding a CLEUD application. It explained that any views regarding planning merits were not relevant. It said the Council makes a decision regarding the use, based on the balance of probability. If it is satisfied that the use is lawful, it must issue a CLEUD. The time limit for taking enforcement action against a breach of planning control is 10 years. In this case the Council considered the evidence showed the use of the building for functions had continued for over 10 years. The planning officer had recommended approval of the CLEUD with a condition that limited the events to a maximum number per year. This was approved by the officer’s manager. The Council agreed that there was reference in the report to the use of the site which was an error, but it said this did not have any impact on the decision.
10. Mr X complained further in December 2018 as he was dissatisfied with the Council’s response. The Council did not reply, and it appears that it did not receive Mr X’s complaint.
11. Mr X complained to the Ombudsman about the lack of response. We referred it to the Council, to complete its complaints procedure. The Council replied at stage two of its complaints procedure in April 2019. It repeated that there was no requirement to consult regarding a CLEUD application. The Council said it must determine the application on matters of fact based on evidence. It said that planning policy or the impact of the development are not relevant in the determination. The Council noted Mr X said that residents had made complaints about the use of site. However, it said that it had no record that it had proposed enforcement action.
12. The Council said it had reviewed the decision and the evidence that it had considered. It stated there was sufficient evidence regarding the continued use for over 10 years. However, it was concerned that the evidence to support the extent of the use and to justify the restriction to a maximum number of events per year was not sufficient. It said the Council should have sought corroborating evidence before coming to a determination. The Council therefore upheld Mr X’s complaint that the Council did not properly consider the evidence when approving the CLEUD. The Council apologised and said it would revoke the CLEUD and invite the owner to make a new application for a CLEUD with more convincing evidence or make an application for a material change of use of the building.
13. Mr X was satisfied with this outcome. However, he then found out the Council had decided not to revoke the CLEUD. He complained further.
14. The Council wrote to Mr X and explained that it had concerns about the condition restricting the number of functions a year and how it had been justified, based on the evidence. It confirmed that attaching a condition to a CLEUD was not “normal practice”. The Council said it had investigated the matter further in 2019. The Council considered that the total picture of evidence justified the conclusion that the building had been used for functions for at least 10 years.
15. The Council referred to another planning application for physical changes to the site which it had approved in recent years, considered that the site had been used for functions. The physical development of the building had been to facilitate its use for functions, and the report recommending approval made it clear the permanent use of the site for functions was considered when the Council came to its decision.
16. The Council said it had now considered whether it should revoke the CLEUD as it had proposed in April 2019. It considered whether revocation to resolve the maximum function limit would be beneficial. The Council noted Mr X’s concerns were regarding the impact on local amenity. However, it explained it could not consider impacts on amenities, as the CLEUD application is not a planning application, but the Council must consider whether there was demonstrable proof of established use. The Council commented that the planning officer’s condition restricting the number of events appeared to be an attempt to mitigate the potential impact of the use on amenity. Considering all the evidence it now had the Council concluded that if it revoked the CLEUD and then invited the owner to resubmit an application, the Council would in all certainty reissue the CLEUD. However, if the Council reissued the CLEUD it would logically remove the condition regarding the maximum number of functions per year.
17. The Council said that clearly this would not address Mr X’s concerns regarding the impact on amenity. It could potentially lead to more of an impact because more functions could be held each year. Therefore, the Council had decided not to take any further action regarding the proposal to revoke the CLEUD.
18. The Council apologised for the length of time it had taken to come to its final conclusion. It recognised Mr X would be disappointed given that it had proposed a different to take a different course of action. But it considered that taking no action would be the better outcome. The Council invited Mr X to send any information he had that could demonstrate that the building’s use as a venue for functions was not valid. It said if he sent this within one month it would consider it.
19. Mr X did not send any information to the Council. He says that it is not possible to provide evidence of a lack of an activity.

Analysis

20. Based on the information and evidence I have seen the Council was at fault in its consideration of the CLEUD and in applying a condition restricting the use when local planning authorities should not normally do this.
21. The Council’s role was to consider the evidence and come to a decision on the balance of probability about the use of the building. Material considerations such as the impact on residents’ amenities are not relevant. The Council considered its decision after Mr X complained and initially agreed that there was fault and it would revoke the approval. However, ultimately after having reviewed all the evidence it concluded that it had sufficient evidence of continuous use for over 10 years. Therefore, it did not consider that it should revoke the approval as if it invited a new application it would in all likelihood reissue the CLEUD, but this would be without any conditions. This would put Mr X in a worse position as the number of events could be exceed the maximum required by the condition.
22. While I consider the Council was at fault, I do not consider this caused injustice to Mr X. This is because Mr X has not been disadvantaged by the Council’s decision not to revoke the CLEUD with its attached conditions.
23. The Council has apologised to Mr X for its delay in coming to a conclusion on this matter. I consider this remedies any remaining injustice to Mr X. The Council has confirmed to me that it has discussed the importance of not attaching conditions to a CLEUD with the planning officer and within the service to prevent this occurring again.

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Final decision

24. I consider there is fault by the Council but no unremedied injustice to Mr X. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman