The Ombudsman's final decision
Summary: Mr X complained about the Council’s failure to enforce planning conditions relating to a business that shares the same building as his home. Mr X said that the use of the business affects his amenity, from cooking smells, noise and loss of privacy. We did not investigate this complaint further, as the planning process is ongoing.
The complaint
Mr X complained the Council failed to enforce planning conditions relating to the use of a café premises, which shares the same buildings as his home.
Mr X said that privacy in his ground floor bedrooms is affected, and that use of the café and the front and rear gardens also affects his amenity, because of noise and cooking smells.
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 any injustice is not significant enough to justify our involvement, 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 invited Mr X to discuss it with me. I read the Council’s responses to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I read our final decision on an earlier complaint from Mr X, in which he had complained about the Council’s handling of planning matters in relation to the same site.
I gave Mr X and the Council an opportunity to comment on my draft 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.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Planning considerations do not include things like: views from a property; the impact of development on property value; and private rights and interests in land.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
Councils have a range of options for formal planning enforcement action available to them, including: Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach; Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it; Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public; Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development; Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows: Grade I – Buildings of exceptional interest; Grade II – Buildings of particularly important/more than special interest; Grade III – buildings of special interest.
If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
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.
We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
What happened The tenant of the café (the business owner), that occupies part of the same building which includes Mr X’s apartment, had made changes which were in breach of planning conditions. The building is a grade II listed building. Mr X contacted the Council about these changes.
The Council’s enforcement officers visited the site and consulted with the Council’s conservation officer. It found breaches of planning control, because there were structures in the front and rear garden that did not have planning permission. The Council served an enforcement notice, requiring the business owner to remove the structures.
The business owner appealed against the notice to the Planning Inspectorate but was not successful. A planning enforcement officer told me that the deadline for removal of the structures under the enforcement notice runs out in a few months.
The business owner submitted a planning application to retain the structures, but the Council has not yet made a decision.
There were other matters that Mr X complained about that the Council decided not to enforce. These are: a mural on a boundary wall at the front of the property - the conservation officer advised enforcement officers that the mural, did not significantly affect the listed building. The Council has decided not to take enforcement action; allegations of ‘community use’ of the rear garden - the business owner said that this was small groups of people, who visited the garden a few times each week. Planning enforcement officers visited but did not witness any breach of control or find evidence of harm caused by an alleged breach. The Council advised Mr X of its findings and invited him to provide diary sheets of use/activity. The Council says this part of the case remains closed until it has evidence of a breach that causes harm to the public.
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: The Council’s responses to Mr X’s complaint include details of how its enforcement officers reacted to his allegations of breaches of planning control. The responses show that, before it made its decision, the Council considered the allegations, its enforcement powers and what it had found on site. This is the process we expect, and so further investigation is unlikely to result in a finding of fault in the way enforcement issues were considered.
The planning decision making process is ongoing and we do not know its outcome. Because of this, even if we had evidence of fault in the decision making process, we would not be able to assess the injustice it caused.
Mr X can comment on the retrospective planning application that is currently being considered, if he feels the new use significantly harms his amenity, or that there are planning uses and developments that are not being considered.
Mr X can provide evidence of the use of the rear garden to planning enforcement officers. They will then use their discretion to decide whether there is a breach of planning control and if it causes sufficient harm to justify formal action. Providing they follow the decision making process set out above, they are free to use their discretion as they see fit.
Final decision
I ended my investigation because the planning process is ongoing and I am unlikely to find fault, recommend a remedy or achieve any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman