Summary: Mr X complains of fault with the Council’s decision not to take enforcement action against unauthorised development at a neighbouring property as well as its handling of enforcement matters at that property. There was fault by the Council because the planning enforcement officer acted partially towards the owner of the neighbouring property. However, the identified fault did not cause Mr X significant injustice.

The complaint

1. Mr X complains of fault with the Council’s decision not to take enforcement action against unauthorised development at a neighbouring property as well as its handling of enforcement matters at that property. Mr X says:
• the outbuilding at the neighbouring property is too high and, as it is intended to be used as a nursery, should not be in a residential area;
• the conduct of the planning enforcement officer was extremely unprofessional; the officer was bullish in response to his questions; the officer spoke down to him; the officer accused him of being offensive; and the officer stated he recorded the conversation.

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The Ombudsman’s role and powers

2. 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, 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 we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

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

4. I reviewed the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

5. Councils can take enforcement action if they find planning controls have been breached. However, they do not have to take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

Material change of use

6. Planning permission is only needed if the work being carried out meets the statutory definition of development set out in section 55 of the Town and Country Planning Act 1990. Development includes material changes of use of land and buildings.
7. A change of use of land and buildings requires planning permission if its constitutes a material change of use. There is no statutory definition of ‘material change of use’ but decisions on whether there has been a material change of use of a property are linked to the significance of the 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 will depend on the individual merits of a case.
8. Planning permission will not normally be required to home work or run a business from home, provided the dwelling house remains a private residence first and business second (or in planning terms, provided that the business does not result in a material change of use of the property so that it is no longer a single dwelling house).
9. A local planning authority is responsible for deciding whether planning permission is required and will determine this based on individual facts. Issues which the authority may consider include whether home working or a business leads to notable increases in traffic; disturbance to neighbours; abnormal noise or smells for the need for major structural changes or major renovations.

Background to the complaint

10. Mr X’s neighbours constructed an outbuilding in the garden of their home where they run a childminding business. The neighbours did not seek planning permission from the Council because they expected to complete the building under permitted development rights. Permitted development rights mean the owner of a property can perform certain types of work without needing to apply for planning permission from the local planning authority. For instance, as applies to this case, an outbuilding can be built without the need for planning permission if it is single storey with a maximum height of 2.5 metres and within 2 metres of a shared boundary.
11. Mr X and other neighbours complained to the Council because the outbuilding in this case was higher than 2.5 metres.
12. The Council’s planning enforcement team visited the site and concluded the outbuilding was higher than 2.5 metres. The Council said the outbuilding was 2.75 metres high from the footings to its highest point and was 2.6 metres if measured from ground level to the highest point. The Council said the outbuilding exceeded the permitted development height of 2.5 metres by 25 centimetres at most.
13. The Council decided the identified breach of planning control was not significant enough to warrant further action by its planning enforcement team. In doing so, it noted there was vegetative screening around the outbuilding. It did not consider there were any overshadowing or overlooking issues.
14. The Council also responded to the concerns expressed by Mr X and others about the intended use of the outbuilding. The homeowner proposed the use of the outbuilding as a nursery/extended childminding business and intended to have a maximum of 22 children present. Mr X and other neighbours were concerned about the increase in the number of children present at the property. They considered there was a material change of use that required planning permission.
15. The Council says it considered the following factors in weighing up whether there was a material change of use:
• whether the home would still be used mainly as a private residence;
• whether the business would result in a marked rise in traffic or people calling;
• if the business involved any activities unusual in a residential area; or
• whether the business would disturb neighbours at unreasonable hours or create other forms of nuisance such as noise or smell.
16. The Council decided planning permission for a change of use was not required but advised the property owner to limit the number of children being accommodated at any one time to 15. It said it would reconsider its position if there was an increase in activity in future.
17. After the Council made its decisions on these matters, other neighbours came across an email exchanged between the enforcement officer dealing with the case and the owner of the subject property. The officer’s email is as follows:

“I can ask Cllr…, but he has already booked the room and made the appointment with the others.

Rather than try to change it how about asking each of them to send me an email in as much detail as they wish setting out why they support the use and the business. Hopefully covering that it has never had an impact on the Close in any adverse way. I would refrain from mudslinging other than where there is solid evidence of intimidation or coercion. I can then read these out at the meeting, they are independent and have nothing to do with you, they have just emailed me in support of what is going on.

I promise you it will be ok, but if you want to change I will ask.”

18. Mr X did not complain to the Ombudsman about the email. But other neighbours did. While Mr X did not raise this in his complaint my finding on this matter in the other complaint should also apply to this complaint.
19. In response to Mr X’s complaint about the enforcement officer, the Council’s investigating officer spoke with the enforcement officer before reporting the following finding:
• The discussion was heated and both Mr X and the enforcement officer felt it was the other who used a raised voice and it was the other who did not listen. The enforcement officer did not record the conversation and did not say that he was recording it. However, the Council apologised that the conversation was not more constructive.
20. At the final stage of its complaints process, the Council iterated its conclusion there were two differing accounts of the conversation and so there was nothing it could do with its investigation of the complaint. It, again, apologised to Mr X for the distress he suffered because of the conversation.

Analysis

21. On the Council’s decision not to take further enforcement action to deal with the breach of planning control, I do not find there was fault by the Council. Enforcement action is discretionary and so it is not the case that the Council was obliged to act because it established a breach of planning control. Rather, having found that breach it had to consider whether it was expedient to take action having regard to the harm to public amenity caused by the breach.
22. Here, the Council decided the breach amounted to an increase in the height of the outbuilding by 25 centimetres at most. It did not consider it was proportionate to take enforcement action against the breach. This was not fault.
23. Mr X told me on the telephone that the enforcement officer’s measurement of the outbuilding showed it was 2.9 metres high and not 2.75 metres at most. He told me the enforcement officer conveyed this measurement to the property owner orally. This is contrary to the officer’s own written record of the measurements. I find it unlikely the officer would tell Mr X that the outbuilding was 2.9 metres high and then record it as 2.75 metres at most.
24. I find the decision on whether there was a material change of use was also not subject to fault. The Council provided reasoned justification for why it did not find there was a material change of use.
25. As to Mr X’s complaint about the conduct of the enforcement officer, I do not consider an investigation of this matter by the Ombudsman would be in the public interest given the different accounts of the conversation between Mr X and the officer. Mr X says he has a witness to the conversation between him and the enforcement officer. But this witness is not an independent party being already known to Mr X.
26. The Ombudsman cannot be involved in internal disciplinary matters of the Council. I also note the Council’s apologies to Mr X notwithstanding its inconclusive findings. Given these factors, I do not consider there is anything more the Ombudsman can offer Mr X through pursuit of this matter.
27. However, I am concerned about the enforcement officer’s email to the property owner. I accept the Council’s point that the officer’s intention was to make sure a planned meeting went ahead. But the wording or content of the email went further than that. It not only reassured the property owner that the outcome would be ok but provided advice on the content of representations neighbours supportive of her business could make to him. This brings into question the impartiality of the enforcement officer. I am not aware of similar advice to other neighbours who objected to the property owner’s business on how to frame their representations.
28. On balance, I am inclined to find fault by the Council here. The enforcement officer’s email undermines public confidence in the planning system.
29. I do not consider the identified fault caused significant injustice to Mr X. I note the Council says it would address the matter with the enforcement officer and so I am satisfied the Council has already taken the necessary action to deal with the identified fault.
30. Although the officer may have shown partiality towards one party in this matter, I note there is still reasoned justification for the planning enforcement decisions. So, I cannot conclude the decisions were affected by fault. In turn, I do not find Mr X suffered a personal injustice that warrants further pursuit of the matter by, or a remedy from, the Ombudsman.

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Final decision

31. I found fault by the Council. However, the identified fault did not cause Mr X significant injustice to warrant further pursuit of this complaint by the Ombudsman.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman