Summary: We will not investigate this complaint about the Council’s decision to approve an application for a Certificate of Lawfulness of Proposed Use or Development for a house next to the complainant’s home. We have not seen enough evidence of fault in the way the Council considered the application. Nor can we achieve the outcome the complainant is seeking.

The complaint

1. Mr X complains about the Council granting a Certificate of Lawfulness of Proposed Use or Development (CLOPUD) for the change of use of a house next to his home.
2. He says the Council:

• Breached planning law

• Refused to regulate councillors

• Refused to act against councillors who breached the data protection regulations and failed to report them to the Information Commissioner’s Office.

• Breached Freedom of Information law.

• Failed to follow its complaint procedures.

3. Mr X wants the Council to admit its error, discipline officers, and revoke the planning permission.

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The Ombudsman’s role and powers

4. We 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. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

5. I considered information provided by Mr X.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. I understands Mr X considers the Council’s decision to grant the CLOPUD is illegal. However, we consider complaints about service fault, we do not consider allegations of illegal actions.
8. 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 the processes an organisation followed to make its decision. If we consider it followed those processes correctly we cannot question whether the decision was right or wrong, This is regardless of whether the complainant disagrees with the decision the organisation made.
9. If the Council receives information which satisfies them of the lawfulness of the use, operations or other matter at the time of the application, they must issue a certificate to that effect. Its lawfulness must then be “conclusively presumed”. Section 192 of the Town and Country Planning Act enables a person to ascertain whether:

• Any proposed use of buildings or other land would be lawful; or
• Any operations proposed to be carried out would be lawful.

This is a way of deciding, for example, whether a proposal would be permitted development, or would not be development, or would not conflict with a planning permission or condition.

10. I consider there is not enough evidence of fault in the way the Council determined the application to justify starting an investigation. In reaching this view, I am aware the Council received an application for a CLOPUD – not a planning application. It cannot assess CLOPUD applications against national/local planning policies. Rather, it must consider whether the proposed use would fall within the scope of, or is materially different to, the existing permitted use.
11. The planning office wrote a report of the application which:
• details the proposed use as described by the applicant
• details relevant case law
• notes the objections received; and
• explains the officer’s recommendation to grant the CLOPUD on the basis the use is considered lawful.
12. A senior officer considered the report. They agreed with the planning officer’s recommendation and granted the CLOPUD under the Council’s scheme of delegation.
13. I understand Mr X disagrees with the Council’s decision. However, the Council determined the proposal based on the information submitted with the application at that time. He also confirms the property is currently empty. If, when the property is occupied, the use is materially different to what was described in the application, the Council would need to decide if another CLOPUD application or a planning application should be submitted for that actual use.
14. The Council must decide each case on its own individual merits. It has explained to Mr X how this application differs to planning applications for similar uses at other sites.
15. I have not seen evidence of fault in the way the Council decided to approve the CLOPUD application. Also, we cannot direct the Council to revoke the certificate, so we cannot achieve the outcome Mr X is seeking.
16. Mr X has concerns about the Council’s processing of his personal data and breaches of the Freedom of Information Act. He has already raised this with the Information Commissioner’s Office, and I consider this is the appropriate body to deal with these parts of his complaint.
17. Regarding the way the Council considered his complaint. The Council has a three-stage complaint procedure:
• Stage one – problem solving
• Stage two – investigation of the complaint
• Stage three – chief executive review
18. Mr X also complains the Council closed his complaint after stage two. However, from the information I have seen, Mr X’s complaint was first registered as a stage two, as his concerns could not be resolved immediately under stage one. It was reviewed by the chief executive at stage three. Therefore, I am satisfied there is no evidence of fault in the way the Council considered his complaint.

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Final decision

19. We will not investigate Mr X’s complaint. We have not seen enough evidence of fault in the way the Council decided to approve a CLOPUD application for the house next to his home. Also:
• we cannot achieve the outcome Mr X is seeking
• it is reasonable to expect him to pursue his data protection concerns with the Information Commissioner’s Office; and
• we have not seen enough evidence of fault in the way the Council dealt with his complaint.

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Investigator's decision on behalf of the Ombudsman