Summary: We found no fault in how the Council reached its decision to issue a lawful development certificate for land near Mr X’s home.

The complaint

1. Mr X said the Council acted wrongly in:

• deciding an application for a lawful development certificate that contained false and misleading statements including about land ownership and ground conditions; and
• failing to consider using its powers to revoke the decision and prosecute the planning applicant for making false and untrue statements.

2. Mr X said what happened denied him the opportunity to comment on the proposed development and to raise environmental and other issues. And the development might increase the flood risk to his home and other nearby properties.
3. Mr X wanted the Council to revoke the lawful development certificate and ask the applicant to apply for express planning permission so it could fully assess the proposals on planning grounds.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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

7. I have:

• considered Mr X’s written complaint and supporting papers;
• considered copy correspondence between Mr X and the Council about the complaint;
• considered planning information about the lawful development certificate available on the Council’s website; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

8. Most development needs planning permission from the local council. However, Parliament has given a blanket planning permission (‘permitted development’) for many minor works. With a few exceptions not relevant to this complaint, councils have no control over permitted development. This means that if someone wishes to carry out such permitted development they may do so without contacting the council.
9. The detailed rules for permitted development can be complex and people may be unsure whether their development complies with all relevant conditions and limitations and so is ‘permitted’. People may also want ‘evidence’ to show future buyers that development on their land was ‘permitted’. So, people may, but do not need to, apply to the council for a ‘certificate of lawfulness of proposed use or development’ (LDC).
10. An application for an LDC must specify the development site and the proposed use or operations. Anyone can apply for an LDC and they do not need to own the development site. (If the applicant is not the owner they should confirm in the application form they have told the owner about the application.) The applicant is responsible for completing the LDC application form correctly. Councils can assume the information provided by the applicant is correct. Councils do not have to publicise LDC applications and the Government’s National Planning Practice Guidance (PPG) says:

“Views expressed by third parties on the planning merits of the case, or on whether the applicant has any private rights to carry out the operation, use or activity in question, are irrelevant when determining the application.”

11. Once the council has an LDC application, it must decide whether the proposals do or do not, as a matter of fact, meet the relevant legal rules to be permitted development. If they do, the council should issue an LDC. Any use or operations then carried out in line with the LDC are ‘conclusively presumed’ to be lawful (unless the rules materially change before the permitted development starts). A LDC does not affect the need to gain any other necessary legal approvals or consents. For example, permitted development comprising building work may still need separate approval under the building regulations.
12. The LDC applicant has a statutory right of appeal against the council’s refusal to issue an LDC, but third parties have no statutory appeal rights. A third-party wishing to challenge an LDC may apply for a judicial review of the decision.
13. It is an offence to provide false or misleading information knowingly or recklessly with an LDC application, or to withhold information with an intent to deceive. Councils will usually apply the ‘code for crown prosecutors’ when considering court proceedings. The code includes an ‘evidential test’ and a ‘public interest stage’. The evidential test concerns the availability and reliability of sufficient credible evidence for a prosecution. The public interest stage concerns consideration of whether criminal proceedings are necessary in the public interest. This stage, among many other issues, includes consideration of whether a prosecution is a proportionate response.
14. Councils may also revoke an LDC if an application either included statements and documents that were “false in a material particular” or withheld “material information”. Councils must tell the landowner, occupier and any other person they consider will be affected, they intend to revoke an LDC. Those people may then send comments before a council decides to revoke the LDC. People have no statutory right of appeal against a revocation but may seek a judicial review of the decision by the courts.

What happened

15. The Council received an application for an LDC for proposed works near Mr X’s home. The relevant permitted development rules included a size restriction. The Council found the proposals to be in line with the relevant permitted development rules, including the size limit. The Council issued an LDC for the works.
16. Mr X found out about the proposals and contacted the Council about the grant of the LDC. The correspondence that followed led Mr X to produce a table setting out his points of concern about the application, which were:

• it was wrong to describe the proposal as a “replacement” facility;
• the application wrongly said there were “French drains” on the site;
• size information was inconsistent and incomplete as the proposals would likely exceed the size limit if necessary banking was included;
• the application form only gave the first and not the second name of the Council planning officer that had provided pre application advice about the proposals;
• the application wrongly said the applicant owned the land;
• the applicant wrongly declared they had provided true and accurate information;
• the application supporting information wrongly described the site as “broadly flat” when it was on a slope;
• the car park referred to in the application supporting information was often full; and
• on-street parking was limited, and any off-street parking would cause residents problems.

17. In response, the Council said the applicant was responsible for providing accurate information and the application form included a declaration to this effect. Anyone could make an application and they did not have to own the development site. It did not have to, and had not, checked the applicant owned the site before deciding the application. Once it formally accepted and decided the application, only the courts had the power to declare it invalid.
18. The evidence showed there had been similar facilities on the site to those now proposed. Drainage and flood risk concerns were not relevant to deciding the application. And the PPG advised that views on the planning merits of a LDC application were irrelevant (see paragraph 10). The application site included grassland and it had assessed the proposals presented in the application. Its assessment and decision would have been the same if the owner had made the application.
19. The Council also said the LDC did not affect the need for any other legal approvals and consents. And, if when built, the development exceeded the permitted development rules, it would be open to enforcement action. The Council also told Mr X he would need to take his own legal advice if he wanted to challenge the LDC.

Consideration

20. People are usually interested in the places where they live and work and so Mr X’s concern about the LDC for development near his home was understandable. My role was to consider whether there was evidence the Council acted with fault in reaching its decision to grant the LDC.
21. Applicants should provide accurate applications and they must complete a declaration to this effect, which councils can rely on. Here, Mr X said the application for the LDC near his home contained inaccuracies. Mr X’s correspondence with Council started after it had issued the LDC. But Mr X questioned why the Council had not noticed the errors before deciding the application.
22. However, what the Council needed to do was decide as a matter of fact whether the application proposals met the relevant permitted development rules. Here, many of the points raised by Mr X had no substantive effect on that decision. For example, whether the development ‘replaced’ earlier facilities (which the Council said evidence showed it did; whether the site overall was ‘flat’ or ‘sloping’; drainage and flood risk; and provision for car parking (see paragraph 16, first, second and seventh to ninth bullet points). These matters were not material to the Council’s decision as the relevant permitted development conditions and limitations did not cover such matters. I therefore did not find the Council at fault for not pursuing these matters before reaching its LDC decision.
23. Mr X also pointed to the application including only the first name of the Council planning officer that gave the applicant pre application advice (see paragraph 16, fourth bullet point). But the application gave the date and details of the pre application advice provided. The Council would also know the full names of its planning officers. And, what the Council had to do was decide whether, as a matter of fact, the submitted proposals complied with relevant permitted development conditions and limitations. I did not find the incomplete name affected the Council’s LDC decision. And I did not find the Council at fault for processing the application despite the incomplete officer’s name.
24. Mr X also raised points about the size of the proposed development (see paragraph 16, third bullet point). The Council assessed the proposals on the information provided about the built form for the development and found it met the relevant permitted development conditions and limitations. The Council also pointed to the application site including grassland. So, while I recognised Mr X’s concerns about the size of the proposed development, I did not find grounds to find fault by the Council on this issue. Should the proposed development, when built, not comply with the LDC proposals, and its size exceed the relevant conditions and limitations, it would not be ‘permitted development’. The Council would then have powers to investigate and decide whether to take enforcement action against an unauthorised development.
25. There, now, was no dispute the applicant wrongly said they were the owner of the application site (see paragraph 16, fifth bullet point). However, as the Council told Mr X, it did not have to, and did not check, ownership of the site. And the Council was not responsible for the wrong statement. I did not therefore find the Council at fault for relying on the applicant’s information and processing the application. (The evidence also showed the applicant was working to secure a legal interest in the site, which it would no doubt want before starting the development.)
26. In coming to the Ombudsman, Mr X questioned the Council’s comments that challenging the LDC was only possible through the courts as it could be revoked. The evidence showed the Council commented on how Mr X might formally challenge the LDC. And it correctly pointed him to court action as any third-party challenge would need an application to judicially review the decision.
27. However, the Council had powers to revoke the LDC and to prosecute for any offence about knowingly providing false information (see paragraph 16, sixth bullet point). As ‘powers’, the Council did not have to use them. And it told Mr X there was no justification for using its powers as it would have reached the same decision, as a matter of fact, if the owner had applied for the LDC. I therefore did not find the Council’s comments about challenging the decision wrong. However, I recognised they led to a misunderstanding about the post decision actions available to all interested parties.
28. Applicants should ensure their applications are accurate, not the Council. People do not need to apply for a LDC before carrying out permitted development. An LDC, if issued, simply provides formal confirmation that permitted development rights apply to the proposed works or change of use. So, while I recognised Mr X’s concerns about the Council’s handling of the LDC application near his home, I found no fault by the Council.

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Final decision

29. I completed my investigation finding no fault by the Council.

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Investigator's decision on behalf of the Ombudsman