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East Lindsey District Council (18 010 720)

Category : Environment and regulation > Licensing

Decision : Not upheld

Decision date : 29 Mar 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council has not acted to stop a nearby dog breeding business, despite a planning enforcement notice preventing such activity being in force since 2005. We do not uphold this complaint. We consider there is no fault in the Council giving the business a dog breeding license despite the planning enforcement notice. We also consider it reasonable for the Council not to have taken planning enforcement action given all the circumstances of the case.

The complaint

  1. I have called the complainant ‘Mr B’. He complains the Council has repeatedly issued a dog breeding license to the owner of a neighbouring property over several years. This is despite a 2005 planning enforcement notice which said the owner could not commercially breed dogs from the site.
  2. Mr B considers the actions of the Council have undermined the Council’s ability to take planning enforcement in this case. He also says that both he and his neighbours suffer impact on their enjoyment of their homes because of the impact of the business. Mr B says it causes noise nuisance and excessive traffic movements through the small village where he lives. They also fear these impacts will worsen if the owner succeeds in gaining planning permission to run a dog breeding business from the site.

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What I have investigated

  1. I have investigated the Council’s approach towards licensing and planning enforcement in respect of the business Mr B complains about, from 2015 onward, when it began a planning enforcement investigation. For reasons explained at the end of this statement I have not considered if the Council may have been at fault in its consideration of the activity on the site before 2015.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. 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)
  3. 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

  1. Before issuing this decision statement I considered:
  • Mr B’s written complaint to the Ombudsman and supporting information he provided, including in a telephone conversation.
  • Correspondence sent to Mr B by the Council about the issues raised in his complaint which pre-dated our investigation.
  • Information available on the Council’s website and other public sources.
  • Information sent to me by the Council in reply to written enquiries.
  • Relevant law and guidance as referred to in the text below.
  • Comments made by Mr B in response to a draft decision statement setting out my thinking about the complaint (the Council also had chance to comment on this but did not do so).

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What I found

  1. Mr B lives around 150 metres from the property at the crux of this complaint, which is at the edge of a hamlet in the Council’s area and accessed via a single-track lane.
  2. The owner of the property runs a dog breeding business. They have registered with the kennel club and advertise their business in various public ways. Information from these sources suggests the owner has bred and sold hundreds of puppies over the past decade.
  3. The property has no planning permission for use as a dog breeding business. The Council refused planning permission on applications made before 2005 for such a use. In September 2005, it then served a planning enforcement notice. This said the owner was using “the dwelling, outbuildings and associated land for the keeping of dogs and the commercial breeding and retailing of dogs” without planning permission. The notice said such use should stop because of the impact on neighbours caused by the noise and traffic movements associated with such a business. The notice said the owner should reduce the number of dogs on site to no more than six. These could be “bred in association with a hobby only” and “not for any financial gain in association with a commercial breeding and retailing use”.
  4. However, despite this notice, the owner has a dog breeding license granted by the Council and has benefitted from this for several years (predating 2015). The current license allows the owner to breed up to six litters of puppies a year. The Council uses standard model license conditions issued by the Chartered Institute of Environmental Health. The license covers various animal welfare matters such as animal housing; safe food practices; infection control; exercise; cleaning and disposal of waste and so on.
  5. The Council’s licensing team took over responsibility for licensing dog breeding establishments in 2014. The Council says before this the role was a responsibility of its environmental services. It explains that it cannot refuse a dog breeding license because the owner has no planning permission. It says the two functions are separate.
  6. The Council says the two services have liaised about this business since early 2015. This was around the time the Council also opened a planning enforcement investigation to see if the owner of the property breached the 2005 enforcement notice.
  7. That enforcement investigation remains open. In that time, the Council says it has on one occasion found evidence the owner kept more than six dogs on the property. But it has not taken formal enforcement action against the owner. It says this is because they have made a series of planning applications seeking planning permission for a dog breeding business on the site.
  8. The Council refused planning permission on applications presented in June 2015 (decided in April 2016) and December 2016 (decided July 2017). The business owner appealed the 2016 application to the Government Planning Inspectorate, which upheld the Council’s decision in April 2018. Then, in August 2018 the business owner presented another planning application. This is now also at the appeal stage, with the Council having refused permission in principle (but the Inspectorate will take the decision due to the Council not deciding it within time). Each application has contained more details aimed at overcoming the grounds given by the Council for earlier refusals.

My findings

  1. I can understand Mr B’s frustration that a business can seemingly continue for years close to his home, that has no planning permission. Further, when that business appears to contravene a planning enforcement notice designed to stop such a business operating from the site. Clearly back in 2005 the Council accepted the concerns about this business which Mr B continues to articulate. It considered the impact of dog breeding on neighbours at this location unacceptable because of the impact of noise and traffic. The Council’s current position, set out in response to the most recent planning application, is that the business owner has overcome some, but not all these impacts (a position not agreed by Mr B or other residents). This means the Council continues to hold to the view that a dog breeding business is not an acceptable planning use of the property. Yet despite this the business continues. It also does so with the benefit of a license given by the same authority.
  2. I can understand why Mr B considers this perverse. However, I do not consider the Council at fault for giving the establishment a dog breeder’s license despite the seeming contradiction. The Council has consistently explained that dog breeding establishment licenses and planning permission operate under two distinct and separate statutes. I consider that correct. I can find no support for the view that a Council can refuse a dog breeding license even though it has refused planning permission for such a use on the same premises. This is after checking the law, government guidance and the practice of other local authorities. I am also aware of no caselaw precedent that would allow the Council to refuse the license on such grounds.
  3. The license conditions focus on animal welfare issues. The Council bases its license on the model conditions suggested by government. This gives it no scope to refuse a license because dog breeding may adversely impact on neighbours. I note also that recently updated government guidance on dog breeding licenses (effective from November 2018) makes no mention of the impact of dog breeding businesses on neighbours. I have no reason to find in this case the Council could not issue a dog breeding license therefore, despite the absence of a lawful planning permission.
  4. I would still expect that despite this, the two Council services liaise closely. Evidence from a dog breeding license inspection could shed valuable light on whether a license holder needs planning permission for their business (as in this case) or complies with a pre-existing permission. The Council says its two services have consulted on this case, although I have seen no evidence which shows this. For example, detailed notes of what licensing officers have found when inspecting the business; such as numbers of dogs on site and so on. Nor evidence of such inspections being shared with the planning service.
  5. However, this is not a line of enquiry I have chosen to pursue. The benefit of any observations of the licensing team would only become relevant at the point the Council chose to take planning enforcement action in this case. That is something the Council has decided not to do until the property owner has exhausted their attempts to gain planning permission for the dog breeding business. Observations at this stage from the licensing team would not therefore have any impact on the Council’s view on planning enforcement.
  6. I consider the approach towards planning enforcement taken by the Council must be a further source of frustration for Mr B. However, I do not consider I can say its approach is one taken with fault. Government guidance and the Council’s own planning enforcement policy give it discretion on whether to take formal enforcement action to remedy breaches of planning law. This includes circumstances where an applicant can remedy the breach of the law by gaining planning permission for the unauthorised use. That is the approach taken here.
  7. I do not consider the guidance should act as a barrier on the Council taking enforcement in all such cases. The Council must balance different matters in deciding whether to enforce in such circumstances. In this case the passage of time would clearly weigh in favour of the case for enforcement. It should be the exception that enforcement investigations run for so long without conclusion. But against it the Council must take account the business owner has presented different planning applications which have each sought to overcome its objections to the development. It has had to weigh each of those applications on their merits. While I have not gone into the details of those planning applications, clearly each of those applications have involved several months of consultation. Then there was also a lengthy delay outside the control of the Council while the 2016 application awaited a decision by the Planning Inspectorate. A similar period of delay may now await all concerned.
  8. Taking this into account I consider the Council’s decision to defer enforcement action here is reasonable and defensible. Mr B may disagree with the Council’s judgment but it is not one I could say the Council has reached with fault.
  9. Finally, I note that both Mr B and other residents in their comments on the planning applications point to dog breeding carrying on for many years before the current planning enforcement investigation began. However, for reasons explained at the end of this statement I have not investigated if the Council may have had scope to take enforcement action at any point between 2005 and 2015.

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Final decision

  1. For the reasons explained above I do not uphold this complaint. I do not consider the Council has acted with fault causing an injustice to the complainant. So, I have completed my investigation satisfied with its actions.

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Parts of the complaint that I did not investigate

  1. As I explained in paragraph 4 the law places limits on how far back in time I can investigate. In this case I considered it reasonable to consider in broad terms how the Council has approached licensing and planning decisions around the business at the centre of this complaint since 2015. This is when a new chapter in the planning consideration of the property began beginning with the enforcement investigation and the first of the recent planning applications.
  2. This is longer than I would normally consider reasonable. But I considered it unfair to penalise consideration of Mr B’s complaint in circumstances where the Council had opened an investigation into the business but not closed it.
  3. I also find from that time on evidence that Mr B and other residents consistently kept the Council aware of their dissatisfaction with the business activities. For example, in their comments on the planning applications or in direct communication with planning enforcement officers.
  4. However, I consider different considerations must apply to any complaint the Council could have acted against the dog breeding business years earlier. Or that officers in licensing could have alerted planning officers to a potential breach of the planning enforcement notice before 2015. I consider any such complaint about these matters out of time for me to investigate.
  5. First, I am unclear why no complaint could not have been made to the Ombudsman sooner about these matters. We would need to have special reasons to contemplate investigating events so long ago.
  6. Second, this is because the law is there for a reason. The further back in time we go the harder it is to investigate. Records may be incomplete, personnel leave their jobs and memories fade.
  7. I considered a complaint about the Council’s historic actions in this case would therefore not be fair to the Council or a practical proposition.

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Investigator's decision on behalf of the Ombudsman

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