The Ombudsman's final decision
Summary: Mr X complained about the Council’s response to his prior notification application to convert a barn using permitted development rights. We did not investigate this complaint further because we are unlikely to find fault, recommend a remedy or reach any other meaningful outcome.
The complaint
Mr X complained Council planning officers produced a report which made it difficult for him to carry out a lawful barn conversion.
Mr X said the barn conversion was lawful under permitted development regulations because the Council had failed to determine his ‘prior approval’ application within the time limit allowed by regulations.
Mr X wants the Council to: accept the barn conversion is lawful permitted development; and confirm it will not take enforcement action against him if he carries out work to convert the barn.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with 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))
How I considered this complaint
I read the complaint and discussed it with Mr X’s representative, Mr Y. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
I gave Mr X and the Council an opportunity to comment on a draft of this decision.
What I found
Planning law and guidance Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
Some permitted development proposals require an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.
It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the council accepts the evidence provided, it can issue a certificate of lawfulness to the applicant.
This may happen where: the council has already granted planning permission for the use or development; a development is ‘permitted development’ and so deemed acceptable because it complies with limits and conditions in regulations; the development was unlawful, but the time limit for enforcement actions has now passed.
The Planning Inspector acts on behalf of the responsible Government minister and decides appeals about matters including: delay – usually over eight weeks – by an authority in deciding an application for planning permission a decision to refuse planning permission or certificate of lawfulness conditions placed on planning permission a planning enforcement notice.
What happened Several years ago, the Planning Inspectorate allowed Mr X’s appeal against the Council’s refusal to approve a planning application to convert a barn to form a dwelling. One of the conditions of the approval required the demolition of a second barn, which was obstructing windows in the barn that would be converted.
A few years later, Mr X applied to retain the second barn, but the Council refused his application. Mr X appealed again to the Planning Inspectorate against the Council’s refusal.
The Inspector did not uphold the appeal but made a comment about whether the second barn could benefit from permitted development rights. The Inspector said he had seen no compelling evidence that this was the case.
More recently, Mr X submitted a prior notification permitted development application to convert the second barn to residential use. The Council did not issue its decision within 56 days, which is the time limit set out in the permitted development regulations.
The Council’s planning case officer wrote a report, which stated prior approval was not required, because the time limit had expired. However, the case officer went on to give an opinion that there was insufficient evidence to show that two of the conditions required under the regulations were satisfied. These conditions related to: the agricultural use for the ‘relevant period’ of time; and the structural capability of the building to be converted.
The officer said that, because of this, the conversion of the second barn may not be lawful under permitted development regulations.
Through his agent (Mr Y), Mr X argued that: the case officer’s report was written after the time limit expired, and so it was unlawful; the case officer’s ‘decision’ was inconsistent with other planning decisions, which accepted the agricultural use of the second barn; when prior notification time limits are not met, councils normally accept the lawfulness of the application, and that is what this Council should do; it is unreasonable in the circumstances to take enforcement action if conversion of the second barn begins, and the Council should confirm this will not happen; and the Council’s suggested remedy, that Mr X should submit a certificate of lawfulness application was a pointless exercise, because it had already made its position clear.
My findings
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I should not investigate this complaint further, and my reasons are as follows: By not issuing a decision within the time limit, the Council lost the power to grant or refuse prior approval of the application, but this does not amount to an administrative fault that falls within the scope of our remit.
Mr X has not provided any evidence to support his suggestion that the case officer’s report was unlawful. Similarly, the question of whether conversion of the second barn is permitted development, is a question of law. We are not a court and have no power to determine these parts of Mr X’s complaint.
The case officer’s report expressed an opinion and was not a decision of the Council. I see no beneficial purpose in comparing the case officer’s opinion with earlier decisions made by the Council or Planning Inspectorate relating to agricultural use. In any event, the Council’s case officer questioned compliance with two conditions that had to be met, one relating to land use, the other to structural capabilities of the building.
We are not an appeal body and cannot decide the planning merits of this case. If Mr X wants a determination on whether conversion of the second barn is permitted development, he may apply for a certificate of lawfulness. If the Council refuses his application, he will have the right to challenge its decision by way of appeal to the Planning Inspectorate.
Mr X would like the Council to confirm it will not take enforcement action if he begins to convert the second barn. The decision whether to take enforcement action is a matter for the Council’s discretion.
Final decision
I ended my investigation because it was unlikely to lead to a finding of fault, a recommendation for a remedy or any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman