Summary: Mr X complained the Council failed to take enforcement action against a neighbouring business operator. Mr X believes the Council’s failure to act is allowing his neighbour unfair competitive advantages. There was no fault in the process by which the Council made its decisions.

The complaint

1. Mr X complains the Council failed to take enforcement action against the operator of a business next to his own, which operated unlawfully for a number of years, by:
• trading without planning permission or listed building consent; and
• providing food and drink, including alcohol, to customers without proper registrations and licences.
2. Mr X, who provides a similar business service, believes the Council allows his neighbour to operate unfairly.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must 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, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I spoke to an environmental health officer.
7. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Relevant law and guidance

8. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include private interests, such as lost profits or increased business competition.
11. Buildings of special architectural or historic interest may be recorded on a list and given additional protection. When works or changes that affect a listed building are proposed, a listed building consent is required in addition to any planning approval that may be necessary.
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.
13. Councils have a role in regulating premises that sell or supply food and drink.
14. Premises that sell or supply alcohol must apply for a licence. Both the premises and business operator need to be licensed for the sale or supply of alcohol to the public.
15. Premises that prepare, sell or supply food need to be registered with local authorities. Premises may be inspected to ensure compliance with regulatory standards.

Background

16. Mr X made a series of complaints about the business that operates next to his for a number of years. The neighbour’s business is a ‘listed building’ because it has special heritage value.
17. A planning enforcement officer visited the site and found a breach of planning control. This was because the premises did not have planning permission for its current use.
18. No significant changes to the building or its internal layout were found and so the Council decided listed building approval was not required.
19. The neighbour submitted a retrospective application to change the use of the building. A Council case officer assessed the application, which included a planning statement about the current use and its history. The case officer recommended approval subject to conditions controlling operating hours and compliance with approved plans.
20. In its response to Mr X’s complaint, the Council accepts it was at fault when it had said his neighbour’s business was operating lawfully in 2013. It also says that, as part of its investigation, it served a planning contravention notice in 2018. It accepts its investigation took longer than it expected, but this was due to lack of staff resourcing and other cases being given higher priority.
21. Mr X complained to the Council that the business was supplying food and drink to customers. He believes the Council should ensure the business is properly registered and licensed.
22. The Council considered Mr X’s concerns, but decided the provision of food and drink was not at a level that required registration or licensing action.

My findings

23. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred or the complainant could have known about them. We have discretion to go back beyond this limit, but would need a good reason to do so.
24. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision; and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
25. Mr X says he has been making complaints about his neighbour’s business for many years, but I have not seen a good reason to investigate beyond our 12-month time limit. Because of this, my investigation is focused on his most recent concerns, which are related to:
• listed building and planning control; and
• food and drink licensing and regulation.

Planning and listed building control

26. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
27. A planning enforcement officer visited the neighbouring business and found a breach of planning control. The Council suggested the business operator submit a planning application for the change of use. The case officer’s report shows the Council considered the changed use, the planning history of the site, the objections of neighbours, including Mr X, and the relevant law and guidance before making its decision.
28. The Council accepts it took longer than normal to deal with Mr X’s concerns, but this was due to it giving other matters a higher priority. The Council is entitled to prioritise its work. When deciding whether and how to act, it may take account of resources, providing it considers the amount of harm any breach causes the public.
29. In this case, it decided there was not significant change to the listed building or harm to the public. The decision to allow the neighbouring business to submit a planning application is within its discretion and so a judgement it is entitled to make.
30. The Council has followed the planning enforcement and application process we expect, and so I find no fault.

Food and drink licensing and regulation

31. Mr X complained his neighbour was providing food and drink, including alcohol, to her customers. An environmental health officer visited the site. The environmental health officer found no food preparation facilities or advertising for the sale or supply of food or drink. The business operator said food and drink, including alcohol, was occasionally provided, but not regularly or frequently.
32. The Council decided the provision of food and drink was not at a level that required registration or licensing action.
33. Before making its decision, the Council took account of Mr X’s concerns, its statutory powers and what it had found during its investigation. It followed the process we would expect, and so I find no fault.

Final decision

34. I have completed my investigation, as I found no fault in the way the Council made its decisions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman