Summary: X complained about the Council’s decision to approve a certificate of lawfulness application from their neighbour. X said roof light windows affect their amenities. There was no evidence of fault in the way the Council made its decision.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision to approve their neighbour’s application for a certificate of lawful use and development (CLUD).
3. X says windows inserted in the neighbour's property affect their amenities.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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

6. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the case officer’s report.
7. I gave the Council and X an opportunity to comment on a draft decision. I took account of any comments received.

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What I found

Planning law and guidance

8. 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 lawful use to the applicant.
9. 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 in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.
10. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

11. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
12. Planning enforcement is discretionary, and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

What happened

13. X complained the Council approved their neighbour’s application for a certificate of lawful use and development for roof light windows.
14. X said the same development was refused on appeal to the Planning Inspectorate and the development could not be permitted development as the windows form balconies when opened and are then higher than the original roof height of the building.
15. Before a decision was made the application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• comments from neighbours;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application.

My findings

16. We are not a planning appeal body, and third parties do not have a right of appeal against council planning decisions – only applicants/landowners can appeal to the planning inspector if they disagree with the judgements that are made.
17. Our role is to review the process by which planning decisions are made. In this case, before a decision was made the Council considered the application, the planning history and representations made by X and others. This is the planning decision-making process we would expect. The Council followed the correct process, there was no fault, and I cannot question the outcome.

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Final decision

18. I have completed my investigation and there was evidence of no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman