The Ombudsman's final decision
Summary: Mrs X complained about the way the Council allowed a nursing home to change use to a supported living facility for people with mental health needs. She said the process the Council used did not allow her to raise her concerns. She said the behaviour of the facility’s residents - including smoking, inappropriate conversations, and more frequent ‘comings and goings’ - impacts on her children. We do not find the Council at fault.
The complaint
The complainant, who I refer to here as Mrs X, complains about the way the Council allowed a nursing home to change use to a supported living facility for people with mental health needs. Specifically, she complains that the Council: failed to follow the correct process; failed to conduct a thorough, independent investigation; and, delayed responding to her complaint.
Mrs X says the process the Council used prevented public consultation and did not allow her to raise her concerns in the proper way. She says the behaviour of the facility’s residents impacts on her children. She says the behaviour includes smoking, inappropriate conversations, and more frequent ‘comings and goings’.
The Ombudsman’s role and powers
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) 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) This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to COVID-19’.
How I considered this complaint
I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance during COVID-19 (‘Good Administrative Practice during the response to COVID-19’).
What I found
What should have happened Certificate of Proposed Lawful Development The Town and Country Planning Act allows a person to find out if an existing or proposed use of buildings or land is lawful. If a council is satisfied the use is lawful it must issue a certificate to that effect. This is called a Certificate of Proposed Lawful Development (CPLD).
Councils do not determine applications for CPLDs on planning merits. Councils cannot take into account concerns about neighbouring amenity when determining a CPLD application. Instead, a council will consider the facts available and decide if there is sufficient evidence regarding the lawfulness of the use.
Categories of use of land or buildings Planning law puts the use of land and buildings into categories. Normally, someone will need planning permission to change the use from one category to another.
Residential institutions are in Class C2. Class C2 institutions are hospitals, nursing homes, residential schools, colleges, or training centres, and premises which provide residential accommodation and care to people in need of care.
Before current legislation put the use of land and buildings into categories, previous legislation (the Town and Country Planning (Use Classes) Order 1972) set out the different classes of use. This previous legislation said that buildings or land under Class XIV of this Act were for use as a “home or institution for the boarding, care and maintenance of children, old people or persons under disability, a convalescent home, a nursing home, a sanatorium or a hospital”.
Guidance issued by the government says there is no statutory definition of ‘material change of use’. It says it is linked to the significance of a change and the impact the change has on the use of land and buildings. It says that a change in use will be determined on the individual merits of the case.
Background
In 1985, the Council granted planning permission for change of use of a building from a residential dwelling to a nursing home. The description of the planning application was “change of use involving alterations and extension of detached house to nursing home for the elderly”.
That planning permission had six conditions attached to it. Condition six says: “the premises shall be used only as a nursing home and for no other purposes including any other purposes within class XIV of the Town and Country Planning (use classes) Order 1972.”
What happened Mrs X lives near that residential care home. In 2019, the Council granted the care home a Certificate of Proposed Lawful Development (CPLD) for its use as a care home with provision of residential care for adults (Class C2).
In December 2020, Mrs X complained to the Council’s planning enforcement team that the care home was in breach of planning control because it was not providing care solely to elderly people.
In April 2021, the Council told Mrs X it found no breach of planning control. The Council found this because the premises was still a Class C2 use, providing care for residents living there. It said there was no difference in planning terms between caring for the elderly and caring for people with mental health needs.
Mrs X then formally complained to the Council.
In its complaint responses, the Council said that the 1985 planning permission had a condition (condition six) which said the premises was only to be used “as a nursing home and for no other purposes within Class XIV of the Town and Country Planning (Use Classes) Order 1972”.
The Council explained that Class XIV was for “use as a home or institution providing for the boarding, care and maintenance of children, old people, or persons under disability, a convalescent home, a nursing home, a sanatorium or a hospital”. It said that this use class had been replaced by Class C2 which included residential accommodation and care for people in need of care.
The Council said it concluded that the proposed use of the premises as an adult nursing home was not materially different to an elderly nursing home. For this reason, there was no breach of the 1985 planning permission.
The Council said that while the description of the approved development in the 1985 planning permission included the term ‘elderly’, the planning condition did not include that term. The Council said condition six restricted the use of the premises to a nursing home (Class C2) rather than a nursing home specifically and solely for the elderly. It said there was no restriction on the age of residents, and since 1985 the age of residents has varied.
Mrs X complained that the Council did not conduct a site visit when assessing the CPLD application. In its complaint response, the Council agreed that it had not done a site visit. It said it did not do a site visit because at the time the country was in the first national lockdown due to COVID-19 (March 2020). It said its process at that time was that site visits should only take place if essential.
The Council said it investigated using up-to-date information and photos. It considered the information it had was sufficient to establish the proposed use.
Analysis The process the Council followed Mrs X complains that the Council failed to follow the correct process (part a of the complaint).
Mrs X complains that she did not have an opportunity to raise her concerns about the proposed use of the premises. She says if the Council had requested an application for full planning permission, she would have had that opportunity.
I agree that the Certificate of Proposed Lawful Development (CPLD) process does not allow for other people to raise concerns, in the way a full planning application does. However, the Council has to determine the applications it receives on their own individual merits. The Council determined the CPLD application without fault. This was a decision it was entitled to make.
I find the Council followed the correct procedure when determining the CPLD application. I do not find fault.
Mrs X complains that the CPLD has removed the ‘elderly’ restriction on who can be a resident at the care home.
I do not agree. The 1985 planning permission does not have a condition that restricts the use of the premises to elderly nursing care only. The only reference to ‘elderly’ in the grant of planning permission is in the description of the proposed change of use.
Condition six of the planning permission restricts the use of the premises to a ‘nursing home’. The condition says the premises shall not be used for any other purposes within Class XIV. This means the premises cannot be used as a home or institution for the boarding, care or maintenance of children, old people or persons under disability, a convalescent home, a sanatorium, or a hospital.
Case law says there is no difference between Class C2, which defines provision of residential accommodation for people in need of care, and use as a nursing home.
Mrs X says the facility does not meet the nursing home restriction, let alone the ‘elderly’ restriction. I do not agree. The Council has explained that residents get an element of nursing care.
For these reasons, I find no fault with the way the Council determined that the CPLD application was not a material change in use. This is a decision the Council is entitled to make.
Mrs X says her understanding is that any variation or removal of a planning condition would have to be done through a separate application under Section 73 of The Town and Country Planning Act 1990.
I do not agree with Mrs X’s understanding of the law. Section 73 of this Act is about determining planning applications to develop land which had not complied with conditions previously attached to it. This is not relevant here because there was no application for planning permission.
The Council’s investigation Mrs X complains that the Council failed to conduct a thorough, independent enforcement investigation (part b of the complaint). She says the Council did not do a site visit.
The Council explained that it did not do a site visit because of its change in procedures due to COVID-19. It explained that it would only do site visits during lockdown if they were essential. In this case, the Council determined it was not essential because it had sufficient information to make its decision. This is a decision the Council is entitled to make.
I find the Council conducted its enforcement investigation in line with its procedures at the time. For this reason, I do not find fault.
Response to Mrs X’s complaint Mrs X complains that the Council delayed responding to her enforcement complaint (part c of the complaint). She says she complained to the Council’s planning enforcement team in December and did not get a response until April. She says the Council said it would respond in 30 days, which it did not.
I find that the Council began its investigation of Mrs X’s enforcement complaint within two working days. This is good practice. I have not seen evidence of the Council telling Mrs X it would respond in 30 days. However, before the Council could finish its investigation, the country went into the first national lockdown due to COVID-19 (March 2020). This understandably caused some delay.
I do not find fault with the length of time the Council took to investigate Mrs X’s allegation of breach of planning control. I find the Council’s investigation was in line with its own revised procedures and in line with the Ombudsman’s guidance (‘Good administrative practice during the response to Covid 19’).
Final decision
I have completed my investigation and I do not uphold Mrs X’s complaint. This is because there is no fault.
Investigator's decision on behalf of the Ombudsman