Summary: Mr X complained the Council failed to follow procedure when its planning enforcement officers investigated his conversion of a garage to letting rooms. I do not consider there is fault causing injustice to Mr X by the Council.

The complaint

1. Mr X complains the Council failed to follow procedure when its planning enforcement team investigated his conversion of a garage to letting rooms. He says it did not take account of information it already had and did not inform him of its decision. The Council started a second enforcement investigation in 2018 and decided there was a change of use of the property, for which planning permission was required. Mr X considers this decision is wrong.
2. Mr X says the Council’s faults caused stress and time and trouble, leading to financial loss because he stopped his letting business and sold his property.
3. Mr X also complains regarding information the Council provided when he made Freedom of Information (FOI) requests about the Council’s planning enforcement investigations. He says the Council altered, removed or withheld information.

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What I have investigated

4. I have investigated the Council’s planning enforcement investigations in 2016 and in 2018 and how it dealt with Mr X’s complaint about its actions.
5. We do not normally investigate late complaints. Late complaints are when someone takes more than 12 months to complain to us about something a council or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
6. However, Mr X says the Council did not advise him about the outcome of the 2016 planning enforcement investigation until 2019. Therefore, I have considered the 2016 investigation.
7. I have not investigated matters regarding the FOI requests Mr X made for the reasons I explain in paragraphs 59-61.

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The Ombudsman’s role and powers

8. 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)
9. 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)
10. 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).

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How I considered this complaint

11. I have considered the complaint and the copy correspondence provided by the complainant. I made enquiries of the Council and considered the comments and documents the Council provided. Mr X and the Council now have an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Local planning authority planning enforcement powers

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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
13. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

Planning enforcement investigation 2016

14. Mr X started converting his detached garage in 2016. This involved a small extension. He contacted the Council’s building control department about the process of complying with building regulations. His email referred to the extension and works to turn the garage into “ancillary accommodation for a B&B business”. He asked, “can this sort of development be done on a building notice?” The Council’s building control officer replied by email that it could.
15. Mr X made a building control application. The building control plans were described as “Conversion of, alterations and extension to existing detached double garage into ancillary bedroom accommodation with bathroom and communal area.”
16. The building control officer received Mr X’s application and completed a form which asked the question, “Planning permission required? Yes/ No?”. However, the officer did not complete this question. The Council then confirmed acceptance of Mr X’s building control application.
17. In September 2016 the Council’s building control department sent a commencement list to the planning department regarding developments where building had started. In October 2016 during the conversion works to the garage, a Council officer visited the site, saying he had been inspecting a neighbour’s development. He asked Mr X if he could look at the garage and take measurements and photos. Mr X agreed. The officer took photos of the building. Mr X says he told the officer he intended to let rooms in the converted garage. The officer noted his visit but did not note there was a conversation about the planned use as letting rooms or B&B rooms.
18. Mr X did not find out until more than a year later that the officer was carrying out a planning enforcement investigation on the basis that the garage had been extended without planning approval.
19. The Council’s notes of its investigation show it found the garage itself had been built without planning permission and “had been in situ for 4 years but extension would now mean the garage was unauthorised.”

Permitted development

20. Most new buildings and changes to existing buildings need a grant of planning permission from the Council. But some developments benefit from a grant of planning permission from central government. Such permission, called permitted development, does not need a full planning application for approval to the Council.
21. Each class of permitted development has certain conditions and limits. If a development does not meet the relevant criteria, a person must make a planning application.
22. The different types of permitted development are set out in the Town and Country Planning (General permitted development) Order 2015).
23. Class E concerns buildings or enclosures separate to the main dwelling-house for incidental enjoyment, such as for domestic needs or personal enjoyment of the occupants of the dwelling-house. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, E and E.4)

The Council’s decision

24. A senior planning enforcement officer noted “Extended part of the garage does not require PP [planning permission] and is PD [permitted development] under class E…if the original garage (that is now immune from action) was also to be counted then PP would be required, no breach has been established. No further action and file to close.”
25. The Council then closed the enforcement file. However, it did not advise Mr X about the outcome of its investigation. The Council’s “A Guide to Planning Enforcement” booklet states:

“If we receive a complaint about your development or property, we will visit the site and contact you to discuss our findings and to seek your views on the complaint received. Our findings will be confirmed to you in writing and we will make clear what, if anything, we expect of you.”

26. In addition, the Council’s “Service Aims and Standards” document which I understand was in place at the time states,

“Once a site visit has been carried out the case will be assessed to establish whether a breach of control has taken place. A response will be made to the enquirer, developer and/or owner of the site, under investigation, within 15 working days setting out whether a breach has taken place and any proposed further action, or to make further inquiries to obtain additional required information.”

Planning enforcement investigation 2018

27. Mr X completed his development in 2017 and started letting the rooms in the converted garage to B&B guests. Family and friends also used the rooms.
28. In Autumn 2018 the Council received a report that the garage had changed use to a holiday let. The Council started a new planning enforcement investigation and an officer visited the site in September 2018. The officer noted no one was about. He said he looked through the windows and noted “It appears to have been converted inside to habitable rooms. It is not like the inside when I visited the site previously in relation to garage case…”
29. The officer noted in mid October he checked the Council’s planning records and could not see it had granted planning permission for the change of use to a holiday let. The officer noted the Council would prepare and issue a Planning Contravention Notice (PCN).
30. A local planning authority (LPA) may issue a PCN if it appears to the LPA that a breach of planning control may have occurred and it wants to find out more information before deciding what, if any, enforcement action to take.
31. In mid November 2018 the Council issued Mr X with the PCN. The Council said it considered there was a potential breach of planning control. It described this as: “Without planning permission, change of use to a holiday let.”
32. The PCN sought information from Mr X so that the Council could decide whether there was a breach of planning control, and if so, whether the Council should invite a planning application to regularise the breach or whether the Council should take enforcement action.
33. Mr X responded to the PCN on 20 November 2018. He said that the use of his property was residential with one or two letting rooms. He said he had let the rooms for over 100 days in 2018 and advertised on two websites. He stated that his property was not used for self contained holiday accommodation.
34. Mr X asked the Council for an update in December. The Council said it would contact him when it had considered the information. In mid January 2019 Mr X chased the Council again for a response. He said it was causing stress and the service standards stated it should respond within 25 working days, but it was now 58 working days since he replied. In his view the report was spurious and malicious, and the Council should easily recognise this.
35. On 30 January 2019 the Council advised Mr X it had decided there was a breach of planning control because it considered he had created a separate planning unit to provide holiday accommodation. It advised Mr X to apply for planning permission within 28 days, so that the Council could properly consider whether it should grant planning permission. It said that if Mr X did not wish to apply, he should cease the use of the building as holiday accommodation within 28 days. The Council explained its process for considering whether it was expedient to take formal enforcement action against the unauthorised change of use.
36. Mr X complained to the Council on 4 February. He said the Council had not properly considered the matter. He said it should have visited the site and it had not received a report regarding any harm or detriment to the amenity, but had issued a PCN. He found the PCN threatening and intrusive, but responded immediately. He then had to wait more than two months before the Council’s decision.
37. On the same day Mr X also replied to the Council’s letter of 30 January 2019. He disagreed with its decision the development needed planning approval. He said he did not offer self catering holiday accommodation, but that his property was residential with 1/2 letting rooms. He also said the Council’s enforcement officer visited in 2016 and agreed the changes were residential, and part of a single planning unit. This was evident because of a council tax property improvement marker. In his view his home and the development were a single planning unit.
38. Mr X chased a response to his complaint on 23 February because it was three days to the deadline to cease the use of his development or apply for planning permission. He added some further comments and sent an example of a Council response which he considered properly dealt with a planning enforcement matter.
39. The Council replied it had put the deadline on hold for Mr X to apply for approval or cease the use while investigating. It said the case officer would discuss the matter with the planning team.
40. On 5 March, the Council’s senior planning enforcement officer wrote and apologised for the delay in responding. She explained the Council had not visited the site as Mr X believed, in January 2019 but had visited in September 2018 and no one was in. She also explained there had been a material change of use for which planning permission was required and the garage development was a holiday let and not ancillary to Mr X’s house. The Council’s view was there was a planning breach and the request for a planning application was correct.
41. The Council noted Mr X had not applied for permission but if he applied it was likely the Council would support it. If Mr X did not apply, the Council said it would not be expedient to take enforcement action but not obtaining planning permission could affect Mr X’s insurance. It asked Mr X to confirm if he would apply or not, to conclude the matter.
42. Mr X made several Freedom of Information requests regarding the Council’s enforcement investigations. In May 2019 Mr X made a formal complaint that the Council had not followed its procedure, querying the evidence it held, and had used in its decisions. In his view there was fraud and malpractice by the Council. In particular, he said Council officers had deliberately ignored his building control application, had incorrectly noted comments he made in telephone calls, and had dishonestly summarised emails he had sent.
43. In July 2019 the Council replied to Mr X’s stage one complaint. The Council said that submitting a notice to building control did not constitute an application for planning permission. It confirmed the Council had carried out an investigation in 2016 into a potential breach of the Town and Country Planning Act 1990. However, the Council accepted that “it was not clear the nature of the Council’s enquiries and information relied upon was well communicated to yourselves”.
44. The Council also noted Mr X’s complaint that it failed to follow process in its enforcement investigations. It accepted while “the information provided to you does not represent a comprehensive picture of a process being followed, it is possible to see that appropriate and proportionate activities were undertaken. Again, I would make the point that these were not well communicated to yourselves.” However, it considered Mr X had not provided evidence of fraudulent activity or intent by the Council. It did not consider that its decision that there had been a planning breach was incorrect. It confirmed it was not pursuing the matter. The Council offered its apologies for its poor communication around the process. It said it would discuss the issue with the service manager.
45. Mr X complained further that the Council’s response did not properly address his complaint that it failed to identify the true nature of his development, failed to follow process and recognise fraudulent activity. He said that the Council had the building control notice six months before the enforcement visit, but it failed to check or note this. At the visit in October 2016 the Council’s enforcement officer took photos internally. But he did not identify the true nature of the development, closing the enforcement case with no further action. Then, three years later the same department advised them they had breached planning control and they must cease the use or apply for approval. He asked what the Council would do to address the process failure he had identified and those which it had agreed in its earlier response.
46. The Council replied confirming its decision. It noted that Mr X’s view that the officer failed to identify the true nature of the development. But it considered the officer’s appraisal of the situation was correct. The Council said it was satisfied there was no evidence of fraud and stated that any departure from procedure did not result in a material error leading to any unfairness or injustice to him. However, the Council recognised Mr X’s sense of injustice and agreed with the stage one response that it could have communicated with him more clearly, and acted more quickly. It apologised on behalf the Council, and reassured him that it had taken measures to monitor enforcement investigations and to communicate with people affected by investigations more clearly and quickly.

Analysis

47. Based on the information I have seen I do not consider there is fault causing injustice to Mr X that remains unremedied.
48. Mr X said the building control officer knew his intention to create letting rooms but did not advise him that planning permission was required. I have seen Mr X’s email referring to letting rooms. It appears this email was not kept or added to the Council’s records. I have also seen the building control officer’s form which was incomplete regarding whether planning permission was required. it is not the role of the building control officer to advise about the requirement to apply for planning permission. The building control regime and planning control are separate. A development may be compliant with building control regulations but may breach planning control. However, the building control team did send a development “commencement list” to the planning department, which led to the 2016 enforcement investigation. While building control may suggest that planning approval may be required, the primary responsibility to consider and enquire about this is the developer’s. If a developer is not sure whether a planning application is required, they can seek advice from the planning department.
49. Mr X said the Council should have recognised the nature of his development in 2016. However, the Council investigated the extension to the garage in 2016, not a possible change of use. When the officer visited, he did not record that Mr X said the building was for letting rooms. Therefore, I do not have sufficient documentary evidence the Council was aware of Mr X’s intention to let rooms in the development. Therefore, I do not find there was fault by the Council in not identifying the potential change of use in 2016.
50. Mr X complained the Council should have checked the building control application and would have been aware of his intentions and the nature of the development. The Council appears to have checked building control records, but did not note Mr X’s intention to let the development. I do not consider it likely the Council could have identified the potential change of use to letting rooms. This is because the building control notice that Mr X submitted in 2016 described the works as “Conversion of, alterations and extension to existing detached double garage into ancillary bedroom accommodation...”
51. I consider the Council did not follow its policy and procedures because it did not tell Mr X the outcome of its enforcement investigation in 2016. However, I do not consider that if there was fault by the Council here, that this caused Mr X injustice. While he did not know the Council’s decision in 2016, the Council did not take enforcement action against Mr X. He was able to complete his development and let rooms in the converted garage for almost two years. If the Council had identified and come to the decision regarding the change of use earlier, Mr X would have been able to make an application for the change of use and continue his letting business, or decide not to do so and cease the business.
52. Mr X said the Council was at fault in 2018 as its initial assessment showed that the potential breach was minor, and no further action was warranted. In his view the Council unfairly pursued its investigation. However, I do not agree with this view. Councils have discretion how they investigate and while early assessment showed the breach was minor, I do not consider it was fault to keep this early assessment under review and obtain further information. It did this by issuing a PCN, which it then considered.
53. The Council has apologised in its stage one response that it did not communicate as well as it could have done. It also agreed that while it may not have followed procedure, no harm had been caused to Mr X as a result of this. I have considered the faults and the possible injustice that may have followed. I do not consider significant injustice was caused to Mr X as I explain in paragraph 51. I consider that any injustice caused by the Council’s poor communication or not adhering strictly to its procedures has been remedied by the Council’s apology and explanations. However, I note that Mr X says that the Council has not carried out the measures to improve the service it stated in its letter in July 2019. These were to monitor enforcement investigations and ensure prompt and clear communication. I asked the Council to provide evidence it had done this. The Council confirmed it had informed its service manager and assistant director of the requirement to monitor enforcement action and ensure timely responses. However, due to the Covid 19 pandemic the service was unable to carry out visits or its day to day work. Therefore, it is unable to evidence monitoring of an improvement in timeframes. It says there have been no other significant delays since 2019. It plans to review its policies because it has formed a partnership with other local authorities.
54. Mr X complained that the Council acted fraudulently due to misquoting or recording incorrectly comments he made in telephone calls and in emails. In his view this amounts to fraud. While some notes were not entirely accurate, I consider there is no apparent evidence of deliberate misrepresentation as Mr X suggests. There is also no evidence that any incorrect notes were taken into account in the decision making by the Council.
55. Mr X complained the Council did not follow its complaints process. The Council acknowledged Mr X’s complaint of 4 February 2019, but did not respond to it as a complaint. It appears the Council decided it should treat Mr X’s letter of complaint as a service request as the enforcement team were already dealing with his response to the PCN. I can see that the Council advised Mr X of this on 11 February. The case was then passed to a senior planning enforcement manager who replied on 5 March. While not answered formally as a complaint, I do not consider there is fault causing significant injustice here. The Council responded to the key issues.
56. Ultimately, Mr X does not agree with the Council’s decision that there has been a change of use to his property which required planning permission. I have not seen fault in the decision making as it appears the Council has taken account of relevant guidance and information, and made a decision based on the evidence and material planning considerations. As I have not found fault in the decision making, I cannot question the merits to the decision as explain in paragraph 8.
57. Mr X says as a result of the incorrect planning enforcement investigation he could not continue his room letting business and he sold his property. I do not consider there is a direct causal link here as Mr X suggests. Any injustice that may have been caused by the Council’s faults did not warrant the actions Mr X says he took. Mr X could have remedied the matter in 2019 by making a planning application for the change of use, and continuing letting his rooms.

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Final decision

58. I have not found fault causing injustice to Mr X. I have completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

59. I have not investigated matters regarding the FOI requests Mr X made and his complaints regarding the Council altering, removing or withholding information.
60. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).
61. Mr X appealed to the Information Commissioners Office. Therefore, those matters are outside the Ombudsman’s jurisdiction, and I cannot consider them.

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Investigator's decision on behalf of the Ombudsman