Summary: We found no fault in how the Council decided not to take enforcement action after it found no material change of use had taken place on land near Mr X’s home.

The complaint

1. Mr X said the Council failed to properly consider and act against an unlawful change of use on land near his home to a beer garden. And, when the Council changed its views about use of the land, it then failed to reconsider its decision not to take enforcement action.
2. Mr X said the unlawful change of use had a detrimental impact on him as the beer garden overlooked his home and resulted in noise and anti-social behaviour. Mr X said what happened had also caused stress and reduced the value of his home.

3. Mr X wanted the Council to reinvestigate and make a fresh decision about whether there had been an unlawful change of use. Mr X also wanted a copy of the Council’s investigation report and any legal advice it relied on in reaching its new decision.

Back to top

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 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)
5. 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)

Back to top

How I considered this complaint

6. I:

• considered Mr X’s complaint and supporting papers;
• talked to Mr X about the complaint;
• considered the complaint correspondence about the complaint provided by the Council; and
• gave Mr X and the Council an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background

7. 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 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.”

8. When considering whether there is a material change of use, a council must identify the ‘planning unit’, which is the area of land to which a planning use applies.
9. 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 A4 covered ‘drinking establishments’, which included public houses. Use Class D2 covered ‘assembly and leisure uses’, for example, cinemas, bingo halls and dance halls (but not night clubs).
10. In September 2020, the law removed use Classes A and D. Uses in those classes moved to other use classes or became ‘standalone’ uses not included in any use class. After September 2020, drinking establishments, including pubs, and cinemas, bingo and dance halls all became ‘standalone’ uses.
11. Where development takes place without the necessary planning permission, councils have the power to take enforcement action against it.

What happened

12. Mr X lives near a property (‘the Property’) that used its outdoor space for quiet leisure purposes. The Property owners started using their outdoor space as a beer garden. Someone contacted the Council to report a change of use and the Council opened a planning enforcement investigation. The Council later decided creating the beer garden was not a ‘material change of use’ and so it did not need planning permission. It therefore closed its investigation without taking any enforcement action.
13. Meanwhile, a representative for Mr X and his neighbours (‘the Representative’) contacted the Council. The Representative said the beer garden was a material change of use needing planning permission.
14. The Council replied, referring to the Property as a ‘pub/club’. The Council said creating a beer garden within the planning unit of a pub/club did not need planning permission. Here, the outdoor space was part of the planning unit occupied by the Property and so the beer garden did not need planning permission. The Council also said there were no planning conditions on the Property restricting use of the outdoor space to quiet leisure purposes.
15. In the correspondence that followed, the Representative agreed the Property, including its outdoor space, was a single planning unit. But the Representative questioned whether the Property was in use as a pub/club. The Representative suggested the Property was in D2 ‘assembly and leisure’ use.
16. The Council admitted that no use class included ‘use as a club’ and so this was a ‘standalone’ use. Use of the outdoor space for quiet leisure purposes was ancillary to the primary use of the Property as a ‘club’. It was a matter of fact and degree whether the club use was as a Class A4 ‘drinking establishment’. It considered both the current and proposed use of the Property were more in line with Class A4 than Class D2. The beer garden would not be a ‘material’ change of use of the Property as a club and so did not need planning permission. The Council also repeated that no planning conditions existed to restrict use of the outdoor space at the Property to a quiet leisure purpose.
17. The legal change to use classes then took effect (see paragraph 10). The Representative wrote to the Council asking if it would reassess use of the Property following the change in the law. The Council said it had assessed the use of the Property, which use had not changed since that assessment. Therefore, there was nothing for it to further assess.
18. Mr X complained to the Council about the impact of the unlawful beer garden on his home and living conditions. Mr X said the Council needed to review its planning enforcement decision as it had changed its mind about whether the use was A4 or ‘standalone’. Mr X also said the Council should consider the outdoor space as separate from the built part of the Property.
19. In responding to the complaint, the Council accepted it had referred to use of the Property as both A4 and ‘standalone’. It was not unusual to describe development differently when gathering information during an investigation. However, its enforcement report said the Property use was ‘standalone’ but more like A4 than D2 as the club’s focus was more on drinking than sport. Its finding that use of the Property was ‘standalone’ was consistent with ‘drinking establishments’ becoming ‘standalone’ uses after September 2020. The Council also said that, regardless of any ‘use class’, the Property was the planning unit. And the primary use of the Property, as a club, had not materially changed by use of the outdoor space as a beer garden.

Consideration

20. The use of the Property’s outdoor space as a beer garden had a significant impact on Mr X’s home. It was not for me to decide whether using the outdoor space as a beer garden was a material change of use needing planning permission. That was a decision for the Council. My role was to consider whether there was evidence of fault in how the Council reached its decision there was no material change of use needing planning permission.
21. The Council decided the planning unit was the Property’s building and outdoor space. Mr X disagreed and considered the outdoor space to be a separate planning unit. However, I could not question council decisions unless they were taken with fault (see paragraph 4). In this case, the evidence showed the Council acted correctly in considering what ‘planning unit’ it was dealing with (see paragraph 8). Having properly directed itself to consider ‘the planning unit’, I had no grounds to find it acted with fault and so could not question its decision on the ‘planning unit’.
22. The Council then considered how the Property, as a planning unit, was used. The evidence showed it found the Property was a club with a focus on drinking rather than sports. As such, it had a ‘standalone’ planning use that was like a Class A4 use. So, the Council found use of the outdoor space as a beer garden did not materially change the overall use of the Property as a planning unit. Having investigated the use, these were decisions the Council was entitled to reach as a matter of fact and degree. And while Mr X might disagree with them, as I saw no evidence they were decisions taken with fault, I had no grounds to question them.
23. In reaching my view, I considered what Mr X said about the September 2020 change to the use classes. I found the Council decided the Property was a club with a focus on drinking rather than sports. The September 2020 changes did not affect that decision.
24. I also considered Mr X’s point about the Council saying the Property had an A4 use and then that it had a ‘standalone’ use. Again, I found the Council decided the Property was a club with a focus on drinking. The decision it needed to make was whether a beer garden in the Property outdoor space materially changed that primary use and so needed planning permission. It found the beer garden did not materially change the use of the Property. The Council’s decision was not affected by whether the Property’s use as a club with a focus on drinking was more like an A4 use or was a standalone use. Rather, as a matter of fact and degree the Council decided the beer garden did not materially change the use of the Property.

Back to top

Final decision

25. I completed my investigation finding no fault in how the Council reached its planning enforcement decision.

Back to top

Investigator's decision on behalf of the Ombudsman