Summary: There was no fault by the Council in a complaint that it failed to act against the alleged use of a residential property for business purposes.

The complaint

1. I refer to the complainants here as Mr and Mrs X. Mr and Mrs X says the Council failed to act against the alleged use of a neighbouring property for business purposes.
2. Mr and Mrs X say the neighbouring property is being used as a vehicle repair business. This has led to driveways of neighbouring properties been blocked; noise; smells; and pollution from the revving of diesel engines.
3. Mr and Mrs X say they provided vehicle registration numbers to the Council as well as photographs only to be told by the Council that the evidence could not be used. They query why a planning officer asked them for photographs if she could not use them.
4. Mr and Mrs X want the Council to enforce the law.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
6. 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

7. I examined the complaint and background information provided by Mr and Mrs X and the Council. I telephoned Mr and Mrs X to discuss the complaint. I sent a draft decision statement to Mr and Mrs X and the Council and considered the comments of both sides on it.

Back to top

What I found

Planning law and guidance on change of use

8. Pursuant to Section 57 of the Town and Country Planning Act 1990, planning permission is required for 'the carrying out of any development of land’.
9. Development as defined in section 55 of the Act includes ‘ the making of any material change in the use any buildings or other land’.
10. If development is carried out without the necessary planning permission, this may lead to enforcement action.
11. A person does not necessarily need planning permission to run a business from home. The key test is whether the overall character of the dwelling will change as a result of the business.
12. A change of use of land or buildings requires planning permission if it constitutes a material change of use. There is no statutory definition of a material change of use. So, 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 the case.

Information on the Council’s website on operating a business from home

13. The Council states:
• The established planning principle of ancillary (or incidental) uses recognises that new activities may be started in a building or within its curtilage without any further need for permission, provided they remain ancillary to the main use, in this case residential.
• Many small business and other non-residential uses are started by people working in their own homes. Permission is not usually required where the use of part of a dwelling/house for business purposes does not change the overall character of the property's use as a single dwelling.  
• Whether a change of use of a dwelling is taking place, and hence whether planning permission is required, is a matter of fact and degree of any proposal. However, if the following guidelines are adhered to, it is likely that planning permission would not be required:
1. the residential use, character and appearance of the property is maintained
2. the type of activity is unlikely to be detrimental to the residential amenities of adjoining occupiers and the character of the area
3. there are no staff employed
4. not more than one room or garage is used for business purposes and this room or garage is available for domestic use outside normal business hours
5. the storage of any materials associated with the activity are not visible from the street and are of such small quantity as not to affect the visual amenities of adjoining occupiers
6. not more than one commercial vehicle will be parked within the curtilage of the site or on the surrounding highway

Background

14. Mr and Mrs X contacted the Council in July 2020 because they were being disturbed by the activities of a neighbour who is allegedly running a business from his residential property.
15. The planning enforcement officer who dealt with the case asked Mrs X for photographs of the neighbour’s business activities. The officer asked Mrs X for the photographs because she was unable to visit the site due to Covid restrictions at the time. Mrs X was initially reluctant to take any photographs for safety reasons. However, she later took photographs and sent them to the Council. She also sent lists of vehicles she observed visiting the neighbour’s home or which were being repaired by the neighbour.
16. The enforcement officer initially wrote to the neighbour. The neighbour then contacted the officer to explain activities at or near his home. The case officer sought further information from the neighbour.
17. The officer then visited the site. She noted a van on the neighbour’s driveway but no repair activities.
18. Mrs X continued to contact the office with photographs and lists of vehicles she had observed at the neighbouring property.
19. The officer visited the subject property on further occasions. Another enforcement officer also visited the site. The case officer did not observe repair activities on any of her visits. The other enforcement officer observed a van on the neighbour’s driveway as well as other cars in the vicinity. Mr and Mrs X say their road is a small cul-de-sac and they never saw any of the council officers visit the property.
20. The Council sought legal advice on the photographs and evidence provided by Mrs X. The advice was that the photographs showed parked vehicles but did not show the activities that would support a conclusion there had been a material change of use.
21. Based on the legal advice and the officers’ observations during their visits, the Council decided there was insufficient evidence to conclude there had been a material change of use. The Council referred the matter to its anti-social behaviour team for consideration of its duties under Section 43 of the Anti-social behaviour, Crime and Policing Act 2014.
22. Mr and Mrs X say their neighbour breached the guidelines stated on the Council’s website.

Finding

23. The Ombudsman is not a planning appeal body. So he is not able to substitute his judgement for that of the Council’s officers. In dealing with complaints about planning enforcement, we will look to see whether there was fault in the process leading to a council’s decision but we cannot determine whether the decision was the right or wrong one.
24. In this case, I have seen evidence that the Council investigated Mr and Mrs X’s concerns about the activities of their neighbour. Mr and Mrs X doubt officers visited the site but I have seen nothing to lead me to conclude the Council was untruthful about the visits. The Council consulted internally on the evidence provided by Mr and Mrs X before it decided the evidence was insufficient to establish there had been a material change of use given the neighbour’s alleged activities. I am satisfied the Council conducted a proper and proportionate enforcement investigation.
25. The Council explained why the case officer asked Mrs X to take photographs and why it did not find the photographs themselves were sufficient to establish a material change of use. I note Mr and Mrs X remain aggrieved despite the explanations but I am satisfied the explanations were cogent.
26. As to the guidelines on the Council’s website, I do not find the Council’s decision was contrary to the guidelines. The guidelines offer a helpful explanation to homeowners intending to operate a business from home on the issues that would be taken into account in determining whether planning permission is required. The guidelines are not a definitive statement of the law. A judgement on whether activities constitute a material change is still required and the Council reached that judgement.

Back to top

Final decision

27. I closed this complaint because I did not find fault by the Council in the matters raised here.

Back to top

Investigator's decision on behalf of the Ombudsman