The Ombudsman's final decision
Summary: We found no fault in the Council’s development control and planning enforcement decision making. However, the Council agreed to apologise to Mr and Mrs X for failing to put their complaint about planning matters through its complaints procedure.
The complaint
Mr and Mrs X complained about the Council’s failure to take enforcement action to stop activities on land in a residential area and near their home. They said the activities were an industrial planning use that had an unacceptable impact on their, and other nearby, homes being visually intrusive, noisy and producing smelly and toxic emissions. Mr and Mrs X wanted the Council to ensure the activities did not take place on the site.
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 an organisation’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) 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) 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)
How I considered this complaint
I: considered Mr and Mrs X’s written complaint and supporting papers; talked to Mr X about the complaint; asked for and considered the Council’s comments and supporting papers about the complaint; shared Council information about the complaint with Mr and Mrs X; and shared a draft of this statement with Mr and Mrs X and the Council and considered any comments received before making a final decision.
Background
Planning applications Most development, which includes a ‘material’ change in the use of land, needs planning permission from the local council. The Government’s National Planning Practice Guidance (PPG) says whether a change of use is material: “…is linked to the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree and this will be determined on the individual merits of a case.”
When seeking planning permission, developers must complete an application form. The information needed by the form includes a description of the development and whether it has started and or is complete. If development has started, the application is ‘retrospective’ and seeks to regularise the existing planning situation. If the development includes changes to non-residential floorspace, details of those changes must be set out in the application form.
On receiving an application, councils must check it includes the necessary information and is complete. The PPG says councils should be satisfied the application form accurately describes the development, but they should not change the description without talking to the developer. Councils should decide applications in line with relevant policies in their development plans unless material planning considerations suggest otherwise. Material considerations concern the use and development of land in the public interest, for example, overlooking, traffic generation and noise. Private matters, for example, the developer’s behaviour and property values, are not material considerations.
Councils must publicise applications so people may comment on the development. Peoples’ comments on planning and land use grounds will be ‘material considerations’ that councils must consider in deciding an application.
Councils have eight weeks to decide most applications and a senior officer usually makes the decision for the council. The senior officer will have access to the planning application file and may also receive a report from a planning case officer. Any such report will usually set out the case officer’s assessment of the development against relevant planning policies and other material considerations. The report will end with the case officer’s recommendation to grant or refuse the development planning permission. It is for the decision maker to decide the weight given to any material consideration when deciding an application. This means the senior officer does not have to agree the report recommendation but may balance and weigh the issues differently to the case officer.
Use classes The law puts uses of land and buildings into ‘use classes’. A change of use within the same use class is not ‘development’ and so does not need planning permission.
Use Class B covered business uses, with different businesses and trades originally set out in Classes B1 through to B8. Class B1 included light industrial uses that could take place in residential areas without detrimental impacts from, for example noise, fumes and smells. Class B8 was use for storage or as a distribution centre. Class B2 covered general industrial uses not falling within Class BI and B3 to B8.
In September 2020, legal changes to use classes included removing Class B1 and creating Class E covering commercial, business and service uses. Use Class E(g) included light industrial uses that could take place in a residential area without detriment to its amenity. The Council granted the planning permission in this complaint before September 2020.
Permitted development The law gives ‘permitted development rights’, which provide a blanket planning permission for some minor developments. The detailed rules for permitted development can be complex and development must comply with all relevant conditions and limitations to be ‘permitted’. With a few exceptions not relevant to this complaint, councils have no control over permitted development. This means if someone wishes to carry out such permitted development they may do so without contacting their council.
Before the September 2020 legal changes to use classes, there were permitted development rights to change use of a building from Class B8 to Class B1.
Planning enforcement Carrying out development without the necessary planning permission or not complying with conditions on a planning permission is a breach of planning control. Councils should investigate reported breaches, but they do not have to take enforcement action against every breach they find. The Government’s National Planning Policy Framework (NPPF) says councils should act proportionately in responding to suspected breaches.
If they decide to enforce against a breach, councils usually have choices in what action to take, including issuing an enforcement notice. An enforcement notice will set out the alleged breach of planning control and the steps needed, and by when, to address the breach. People have legal rights of appeal to the independent Planning Inspectorate against an enforcement notice. The grounds of appeal include that planning permission should be granted; the matters stated in the notice do not constitute a breach; and the alleged breach has not taken place.
What happened In 2019, the Council received a retrospective planning application for development described as a “change of use from storage to car restoration” (‘the Application’). The form accompanying the Application said floorspace in the building on the site had changed from ‘use class B8 storage or distribution to B1 light industrial’. The form also gave opening hours for a ‘B1 – light industrial use’.
The Council publicised the Application and Mr and Mrs X, and other local people, commented on the development. After visiting the site, a Council planning officer prepared a report assessing the development (‘the Report’). The Report said the Application was “for a change of use from storage to car restoration, retrospectively”. The Report set out people’s comments in full, including those made by Mr and Mrs X. Mr and Mrs X’s comments referred to the development having started, and they welcomed the Application as noise from the site caused a disturbance. Mr and Mrs X said they would accept the development provided the Council imposed adequate controls to safeguard their residential amenities, including: restricting the planning permission to ‘use for B1 light industrial appropriate to a residential area’; adequately defining on site activities because ‘car restoration’ could mean general vehicle servicing and repair, which would be inappropriate in a residential area; defining the scale and intensity of the use because the more employees on the site, the greater the noise; and noise suppression measures to address the noise nuisance caused by use of machinery and tools on the site.
Other peoples’ comments reflected similar concerns to Mr and Mrs X about the vagueness of ‘car restoration’ in describing on site activities and the noise nuisance caused by the development.
The Report also referred to representations made by the Council’s environmental health team (‘EHT’) about noise from the development. The EHT recommended any planning permission should include planning conditions: restricting the number of people on the site; limiting the hours of use for noisy machinery; preventing installation of outside noise producing equipment without the Council’s prior approval; and for installing noise mitigation measures within the building on the site.
The Report identified the need to decide the Application in line with relevant planning policies and assessed the development against such policies. The Report said the development complied with planning policies about small scale rural enterprises, design, and transport. The Report also referred to residents’ comments, including those from Mr and Mrs X and said the planning conditions proposed by the EHT would protect residents’ amenities. The Report recommended, and a senior Council officer agreed, the grant of planning permission for the development (‘the Permission’). The Permission included the conditions suggested by the EHT and the Council later approved noise mitigation measures for the site building.
After about five months, Mr X contacted the Council saying the developer was expanding works on the site. Mr X said the new works would have bad environmental impacts and presented a fire risk. Mr X also said the works were not suitable in a residential area and should be on an industrial site.
Over about three months, the Council’s planning enforcement team (‘PET’) investigated Mr X’s concerns, including visiting the site, communicating with the developer and meeting Mr and Mrs X. The PET found new activities (‘the Activities’) and a new structure (‘the Structure’) on the site. The PET said they could not support a retrospective planning application for the Activities, which were not in line with local planning policies, or the Structure. The PET decided enforcement action was necessary against both the Activities and the Structure.
The PET sought legal advice. The Council’s lawyers questioned the extent of the Activities and whether they represented a material change of use from car restoration, which was normally a Class B2 use. The PET confirmed their support for an enforcement notice. The Council then issued an enforcement notice for both the removal of the Structure and to stop the Activities. The Council, which had updated Mr and Mrs X during its investigation, told them it had issued an enforcement notice.
The developer appealed the enforcement notice. The Council told Mr and Mrs X about the appeal.
The developer contacted the Council saying the Permission was for car restoration, which was a B2 use. The Activities were an essential part of car restoration and so there was no material change of use or, therefore, any breach of planning control. The developer suggested the Council withdraw the enforcement notice.
The Council decided to withdraw the enforcement notice. The Council told the developer the Structure remained a breach of planning control and it had received complaints about its use. The developer said the Structure was permitted development. The developer also questioned the complaints saying the Structure and Activity were linked and, while tested on installation, not used since. In the months that followed, the Council and developer were in touch about the Structure but neither changed their position.
Meanwhile, the Council told Mr and Mr X it had withdrawn the enforcement notice. Mr and Mrs X complained to the Council. They said information in the Application form showed the development was ‘class B1 car restoration’. The Activities were a Class B2 use and so a material, unauthorised, change of use had taken place breaching planning control and damaging residential amenities. Mr and Mrs X pointed to the Council’s recent refusal of planning permission for a B2 development near their home because it was “wholly unacceptable”. They said the Council could not reinterpret the Application and claim the Permission approved ‘class B2 car restoration’. Mr and Mrs X said the Council had to take enforcement action or ask for a planning application so it could consider whether to grant planning permission for a B2 use on the site.
The Council replied saying the Application described the development as ‘change of use from storage to car restoration, retrospective’. While the developer described the use as ‘B1’ in the Application form, the development description did not imply that use class. The Council also said the previous site use was for Class B8 purposes. A change from B8 to B1 was permitted development and did not need express planning permission. If it had considered the Application was for Class B1 development, it would have told the developer planning permission was not needed. It followed that it had considered the Application was for B2 development although the Report did not set this out. The Council said neither enforcement action nor a further planning application was necessary for the B2 use of the site.
Mr and Mrs X escalated their complaint saying the Application sought permission for Class B1 development. Neither the developer nor the Council asked for a change to the description and so the Council had processed the Application for B1 development. Mr and Mrs X also said they were astounded the Council claimed the site had B2 use because it failed to tell the developer a B1 use did not need planning permission. They said there was no evidence to support this claim, including in the Report or conditions on the Permission. The Council had approved B1 use of the site and the B2 use was unlawful.
Mr and Mrs X repeatedly chased the Council for a reply. The Council apologised for its delay and, after about three months, suggested they complain to the Ombudsman.
Meanwhile, Mr and Mrs X had continued to write to the Council’s PET. The PET repeated the Permission was for Class B2 car restoration, which was why it included conditions about noise and hours of use. The PET also said they considered the Structure needed planning permission, but the developer disagreed. They could not sustain a refusal of planning permission for the Structure on its visual impact and currently had no evidence it caused other planning harm.
Mr and Mrs X’s solicitors then wrote to the Council. The letter set out the planning history of the site and noted the Structure and Activities started shortly after the Council had approved noise mitigation measures for the site building. The solicitors’ letter said the Activities, which had been intermittent and were not yet fully operational, impacted on Mr and Mrs X’s residential amenities. The letter said the Council should take enforcement action against the Activities and Structure, which breached planning control.
The Council replied saying it would reconsider its position about the Activities not being a material change of use or breaching conditions on the Permission. The Council also confirmed it continued to investigate the Structure.
The Council’s comments to the Ombudsman The Council said it had no record of ‘car restoration’ on the site before receiving the Application. It confirmed that changing the site from its (former) Class B8 to Class B1 use would have been permitted development. And ‘car restoration’ appeared to be a Class B2 use. The Council did not consider the Application contained inconsistent information although, with hindsight, it could have asked for more information about the development. However, the Council did not consider any such additional information would have affected its planning decision.
The Council said the Report set out its assessment of the Application. However, with hindsight, the Report should have more thoroughly covered residents’ objections although this would not have affected its planning decision. The Council also said any Class B1 use for light industrial development suitable for a residential area would not need planning conditions. As the Permission included restrictive conditions to protect residential amenities that implied a Class B2 use. However, with hindsight, inclusion of a use class to clarify the development approved might have been useful. It would also, with hindsight, have helped if the Permission had included a condition restricting or controlling other Class B2 uses.
The Council said it would consider the Activities a Class B2 use. It withdrew its enforcement notice as there had been a misunderstanding about the scale of the Activities. The enforcement notice was incorrectly based on the whole site being in use for the Activities. The Council also said the Activities were not yet fully operational although a PET officer had witnessed some works involving the Structure. Its PET and or EHT officers would visit the site to assess odour, toxicity and noise issues once the Activities were fully operational.
The Council said it continued to consider the Structure needed planning permission. However, a senior officer had considered the visual impact of the Structure and found it would not cause significant planning harm. Until the Activities were properly operational, it could not assess any noise and fume issues.
The Council said it was seeking external legal advice about the planning position and its next steps would depend on counsel’s response. (Counsel subsequently advised the Permission was for Class B2 use. And the Council said it would further consider whether the Activities caused any planning harm once the linked equipment on the site was fully operational.)
On complaints handling, the Council said its failure to respond to Mr and Mrs X’s escalated complaint was an isolated incident, for which it would apologise.
Consideration Introduction The Ombudsman does not provide an appeals service. Our role is to consider whether councils act with fault in reaching their decisions. And, if there is evidence of fault, to consider if and how that fault has affected the decision and whether it has caused injustice. However, we cannot change or replace council decisions. And it is not always possible for a council to remake a decision, without the identified fault, to put matters right. But, in such cases, there may be other ways to address injustice caused by the fault. If there is no evidence of fault in how a council reaches a decision, we cannot question that decision however strongly someone may disagree with it.
The Permission Here, Mr and Mrs X complained about the Council’s failure to take enforcement action. They said the Council’s enforcement decision linked to it wrongly declaring the Permission granted a B2 use. The Application and the Permission both described the development as “change of use from storage to car restoration”. Mr and Mrs X pointed out that where the Application form asked for ‘use class’ information, the developer referred to ‘B1 use’. The Council pointed out that changing the site from B8 (storage or distribution centre) to B1 use was permitted development. So, it had no need to grant express planning permission for a B1 use on receiving and determining the Application.
The Council recognised, although with hindsight, that referring to a use class in the Permission would have provided clarity about the ‘car restoration use’. I agree. However, the Report showed, in setting out in full Mr and Mrs X’s, and other residents’ comments, the ‘B1 use’ issue was before the Council when it decided the Application. I therefore saw no grounds on which I could find the Council failed to take account of the use class issue in deciding the Application. And, having consulted its EHT, the Council applied conditions to the Permission aimed at protecting neighbours’ amenities. I therefore also saw no grounds on which I could find the Council failed to consider residential amenities in granting the Permission. So, while the Permission could have referred to a use class, I did not find the Council acted with fault in deciding to approve the ‘car restoration’ development.
It is for the courts to interpret a planning permission where its meaning and extent are in dispute. So, here, the Council having issued the Permission, I had no powers to legally decide whether it approved a B1 or B2 ‘car restoration use’.
Planning enforcement Here, the evidence showed the Council took timely and suitable action to look into Mr and Mrs X concerns about the Activities and Structure (see paragraph 23). However, information gathered and considered by the Council showed the planning position was unclear as ‘car restoration’ would likely include the Activities (see paragraph 24). But, despite the lack of clarity, the Council decided to issue an enforcement notice.
The Council later withdrew the enforcement notice and told Mr and Mrs X the Activities did not breach planning control. However, it is not necessarily fault to change position. And, although the Council withdrew its enforcement notice, it continued to consider Mr and Mrs X’s concerns and recently sought external legal advice (see paragraph 39). While counsel has now advised the Permission is for a B2 use, the Council has said it will further consider the impact of the Activities once they are fully operational.
It is for the Council to decide whether there is a breach of planning control on the site, whether because of the Activities and or the Structure. The steps the Council has and is taking to reach its decision are those that might be reasonably expected for a planning enforcement investigation. It is regrettable that Mr and Mrs X’s expectations were raised then frustrated by the issue and later withdrawal of the enforcement notice. But, overall, I saw no evidence of fault in how the Council was carrying out its enforcement investigation .
Complaint handling In failing to reply to Mr and Mrs X’s escalated complaint the Council failed to meet acceptable administrative standards (see paragraphs 30 and 31). To address the distress caused by the failure to reply, the Council agreed to apologise to Mr and Mrs X.
Agreed action
I did not find fault in the Council’s planning and enforcement decision making. However, there was fault in its complaints handling. The Council agreed, within 20 working days of this statement, to send Mr and Mrs X a written apology for the distress caused by its failure to put their complaint through its complaints procedure. The Council also agreed to send the Ombudsman a copy of that apology.
Final decision
I completed my investigation finding fault in the Council’s complaints handling but not in its development control and planning enforcement decision making.
Investigator's decision on behalf of the Ombudsman