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London Borough of Bromley (18 012 993)

Category : Planning > Building control

Decision : Closed after initial enquiries

Decision date : 06 Feb 2019

The Ombudsman's final decision:

Summary: Miss X complains about the Council’s decision not to act against a breach of planning control. The Ombudsman will not investigate this complaint. This is because we are unlikely to find fault in the way the Council made its decision.

The complaint

  1. Miss X complains for Mr Y. Mr Y’s father owns a café. He complained to the Council that a sandwich shop next to the café was selling hot food without planning permission and therefore was breaching planning control.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault
  • it is unlikely further investigation will lead to a different outcome

(Local Government Act 1974, section 24A(6), as amended)

  1. 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)

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How I considered this complaint

  1. I considered the information provided by Miss X and the Council. Miss X commented on the draft version of this decision.

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What I found

  1. In planning terms, the use of property is divided into different classes. Class A1 use covers shops and retail outlets. Class A3 covers food and drink.
  2. Mr Y complained to the Council that a sandwich shop next to his father’s café was selling hot food without the correct planning permission. He provided a copy of the menu leaflet published by the shop.
  3. The Council says it inspected the shop. It said there were no facilities installed such as a cooker hob and oven to facilitate the operation of primary cooking. And it had inspected the fridges and confirmed there were no raw food products stored.
  4. It told Mr Y the Town and Country Planning (Use Classes) Order 1987 defines different uses within class A1. This includes cafes and sandwich shops. It explained:

“A restaurant falls within the Use Class A3, this is where the primary use of the premises is for the sale of hot food prepared from raw and cooked on the premises, for consumption on the premises. However, a café serving pre-cooked food and/or sandwiches etc. and possibly a drink can be seen as a sandwich shop or similar establishment with no cooking of raw food or cooking facilities such as an oven and hob that would require a fumes/odour extraction system can operate within Use Class A1 provided the principle use is retail.”

And

“Where the primary use of the premises is for the sale of sandwiches, light meals/snacks and soft drinks, other ancillary uses can take place within the planning unit e.g. seating (tables and chairs), however the Primary use remains within A1 use.”

  1. The Council also told Mr Y that it considered there was no breach of planning control. It also confirmed the sandwich shop did not require a premises licence because it does not sell alcohol and is not open after 11pm.
  2. Mr Y was not satisfied with the Council’s response. He complained again, saying the sandwich shop had expanded its hot food sales and was breaching planning control.
  3. The Council says a different officer inspected the premises again. After this it wrote to Mr Y again, confirming there was no breach of planning control.

Assessment

  1. The Ombudsman is not an appeal body. Our role is to look at the Council’s decision-making process.
  2. The Government’s National Planning Policy Framework says that: “enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control”. If councils receive a report of a possible breach of planning control, they must consider it. They must decide what investigation, if any, is necessary. If they decide there is a breach of planning control, they should decide what action, if any, they should take.
  3. The Council has investigated Mr Y’s reports. It says two different named officers have inspected the site. Although the initial response stated that no facilities such as cooker hob and oven the Council has confirmed there is microwave small grill and oven at the premises. With this knowledge, it has decided it is predominately a sandwich/coffee type shop that also prepares hot food. It has decided this does not amount to a change of use. And it has told Mr Y it will not take any further action.
  4. I understand Miss X and Mr Y disagree with the Council’s decision. Mr Y says he has sought legal advice which he says confirms his view. However, it is not for the Ombudsman to challenge the Council’s view on this as it is not our role to define the law. Only a court can do so.
  5. I have seen no fault in the way the Council considered Mr Y’s report that the neighbouring property was breaching planning control. When the alleged unauthorised activity was brought to its attention it visited the site and satisfied itself there was no change of use. Without fault the Ombudsman will not pursue the complaint.

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Final decision

  1. I will not investigate this complaint. This is because we have not seen any evidence of fault in the way the Council decided there has not been a breach of planning control.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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