Summary: There is no evidence of fault in the way the Council considered taking enforcement action against a bar below Mr B’s property. There was fault in the Council’s communication about the enforcement with Mr B and Mr C, but the Council has already apologised for this.

The complaint

1. Mr B and Mr C complain about the Council’s lack of enforcement of alleged planning breaches and lack of building regulation approval in a bar which is below Mr B’s apartment. They also complain about the Council’s response to their complaint and the Council’s failure to provide them with documents they had asked for.

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What I have investigated

2. I have investigated the complaints which relate to recent events. Paragraphs 61 to 63 explain why I have not investigated complaints about lack of planning enforcement in 2013 and the disclosure of documents.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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)

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How I considered this complaint

7. I have discussed the complaint with Mr B, Mr C and the Council. I have considered the documents they have sent, the any relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law and guidance

Planning permission - change of use

8. The Town and Country Planning Act 1990 says planning permission is needed to carry out development. Development includes carrying out building works (demolition, building and structural alterations or additions) and material changes to the of use of land or a building.
9. Alterations which only affect the interior of the building are generally speaking not development.
10. The Town and Country Planning (Use Classes) Order 1987 puts uses of land and buildings into various categories known as 'Use Classes'. Certain uses do not fall within any use class and are considered ‘sui generis’, for example petrol stations, night clubs and so on. Where a building is used for different uses which fall into more than one class, then the overall use of the land or buildings is regarded as a mixed use, which will normally be sui generis.
11. 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 ‘material change of use’; however, it is linked to the significance of a 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 this will be determined on the individual merits of a case.

Enforcement

12. Planning authorities may take enforcement action where there has been a breach of planning control. A breach of planning control is defined as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
13. The Act sets out the time limits within which councils can take enforcement action. Development becomes immune from enforcement if no action is taken:
• Within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out without planning permission of operational development (building, engineering, mining or other operations) in, on, over or under land;
• Within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house;
• Within ten years, for any other breach of planning control.
14. Enforcement action is discretionary. Enforcement action is not taken just because there is a breach. There must be sound evidence of harm to matters of planning (public) interest and reasoned justification.

Building control

15. Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Building Act 1984 is the primary legislation under which the Building Regulations and other secondary legislation are made.
16. A local authority has a general duty to enforce the building regulations in its area and will seek to do so by informal means wherever possible. If informal enforcement does not achieve compliance, then the local authority may prosecute the person in the Magistrates Court and a fine may be imposed. The other option is to serve an enforcement notice asking the works to be done.

Council’s complaints procedure

17. The Council has a two-stage complaints procedure. This says that a senior member of the department will respond at stage 1. If the complainant is not satisfied with that response, then the complaint will be answered by the Corporate Complaints Team which is independent from the department.

What happened

18. Mr B lives in an apartment on the first floor above commercial premises (property K) which consist of a ground floor unit and a basement unit. He has lived there for 20 years. In 2013 the Council granted planning permission for a change of use of the premises below Mr B’s apartment into mixed use (sui generis) including a convenience store with integrated deli, a café, a restaurant/bar and a takeaway.
19. In February 2018 Mr C wrote to the Council as Mr D, who owned the space below him, had done works to the basement. The plan was to use the basement as a co-working space during the day and as a bar during the evening. The website said that entry to the basement required a membership fee of £100 per year.
20. Mr C emailed the Council on 6 February 2018. He wanted to know whether Mr D had obtained building regulations approval for the works. He said he could not find a planning application and there should be one as Mr D was opening a private members club which would be a change of use under planning law.
21. The Council confirmed on the same day that Mr D had not made a building regulations application. The building control officer visited the premises and emailed Mr C on 14 February 2018. He said there were building works progressing in the basement and he was in the process of resolving the matter with Mr D.
22. Mr B made several complaints over the following months about the loud noise from bar K. Mr C sent emails to different people in the planning department regarding the alleged breaches and change of use. Some of those emails were to a senior member of staff who was head of several Council departments. Mr C emailed the Council on 25 March 2018 and said the bar was advertised as being open until 3 am, in breach of the bar’s licence which said the closing time should be 2 am. In addition, there was a planning condition which said the bar could be open until 1 am.
23. The Council’s noise and licensing enforcement officers visited property K and Mr B’s apartment in the following months. They attended after 2 am on 31 March, 1 April and 2 April and the bar was closed. The officers attended at 2 am on 7 April, 11.48 pm on 10 April, 01.20 am on 2 May, midnight on 6 May, 1.40 am on 12 May and 10.35 pm on 25 June and the bar was closed on each occasion.
24. Council officers attended the bar three nights in a row from 31 March 2018 always around 02.30 am. The bar was closed each time. They attended on 07.04.18 at 2 am and the bar was closed.
25. On 3 April 2018, Mr C sent an email explaining why he was of the view that the works and the use of the basement were in breach of the 2013 planning permission.
26. Mr B and Mr C applied for a review of the licence for bar K on 13 March 2018 and sent an amended application on 5 May 2018. Mr C wrote to the Council and said he expected the planning department to submit written representations supporting his request for remedial action, considering the lack of a planning application and the breach of the existing planning permission.
27. The Council wrote to Mr D on 15 May 2018 and said he should seek planning permission for a change of use to a café/bar (sui generis). It said there would be a breach of planning permission if he continued to trade without planning permission.
28. The review of the licence took place on 28 June 2018. The Council imposed additional conditions which were:
• Mr D should appoint an independent acoustic engineer within 28 days.
• The engineer would complete a report within three months.
• Mr D should abide by the reasonable conclusions of the engineer.
• Mr D would pay for the costs of the engineer’s report and the reasonable recommendations.
• There should be no noise from the premises nor vibration be transmitted through the structure of the premises which gave rise to noise leakage as identified in the report.
• DJs could continue to play music at the bar until the above conditions were complied with, but a tamper proof noise limiter had to be installed within 28 days.
29. A week later, the Council changed its mind about the planning permission and said the current use of property K including the basement were covered under the 2013 planning permission.
30. Mr C complained to the Council in July 2018 and his complaint was considered under the two-stage process. I have summarised his complaint and the Council’s responses in so far as they are relevant to the current investigation.

Mr B and Mr C’s complaints

31. Mr C’s main complaint was that the current use of bar K’s basement was a change of use and therefore in breach of the 2013 planning permission. But, he also argued, if the change of use was acceptable, then Mr D was still in breach of the 2013 planning permission as he had not met all the conditions attached to that permission. Either way, the Council was at fault for not taking take enforcement action for the breaches. His arguments were as follows.
• The day use of the basement as a co-working space which required membership and the evening use with DJs playing music were a change of use.
• The original planning permission was for a different design and layout of the premises. The new layout was therefore a breach of the planning permission.
• The works to the basement were done outside the three-year time limit of planning permission.
• The premises were open until 3 am despite a condition of the planning permission that closing time should be 1 am.
• One of the conditions of the 2013 permission was that there should be an acoustic report and the premises should be acoustically insulated in line with this report. Mr C said that, firstly, the 2013 acoustic report only tested background music and was therefore no longer relevant to the current use which involved music by DJs. Secondly, the acoustic expert never took sound recordings from Mr B’s flat in 2013 so the report was flawed. Finally, the premises were never acoustically insulated following the 2013 acoustic report so Mr D had been in breach of the planning permission since 2013 for not complying with the condition.
• The Council failed to properly consult with residents when it granted planning permission in 2013.
32. Mr C made other complaints which were:
• Mr D had not obtained building regulations approval for the works he carried out. The Council should therefore have taken enforcement actions against Mr D but failed to do so.
• The planning department should have made detailed representations for the licensing review and failed to do so.
• Mr C said he had sent 24 emails since February 2018 and the Council had still not responded in June 2018.
• The response to his stage 1 complaint was written by someone of less seniority than one of the people Mr C complained about. This meant he had no confidence his complaint was properly investigated.
• The Council has not addressed in sufficient detail the evidence that he had given about the planning matters. There was no clear explanation why it changed its mind about the change of use in June 2018. The Council had applied a higher evidential threshold to his evidence than to that of the Council’s officers.

The Council’s response

33. The Council said the following in relation to the planning breach and change of use:
• The current use of property K including the basement was different from the use anticipated in the 2013 planning permission. However, it did not constitute a material change of use and therefore did not need a fresh planning application. The original planning permission said the unit could be used as a ‘café, restaurant and bar’ and this was essentially the current use of property K.
• Mr D had to commission an acoustic report as part of the new licence conditions and this would involve an assessment of noise in Mr B’s apartment. The findings of this report would identify any acoustic measures that were needed. The Council would ask these works to be carried out under the 2013 planning condition.
• It added that the acoustic problems may lie with the apartment conversion not being properly insulated and in that case, the duty to rectify this problem would lie with the original developer.
• It explained the different status of the conditions in the 2013 planning permission. Condition 2 said the development should be carried out in accordance with the plans submitted. The Council said this condition was singular in its application. Therefore, once the development had been carried out, the condition stopped applying and the Council had no control over future changes if they were not material changes. It pointed out that changes to the layout were not a material change in terms of planning.
• It did not agree that the use of the basement was so different from the ground floor unit that it required separate planning permission. It said there was a membership payment for the basement for use during the day. During the evening both floors were open to all the clients so the membership payment made no difference in the evening. People tended to use the restaurant upstairs and the bar downstairs during an evening.
• I based its decision on the planning history, the documents of the planning application and a site visit. It said it had made no note of the visit.
• The 1 am closing time was still applicable and the Council could pursue action if this condition was continually breached.
• It did not actively monitor every planning permission to check whether every condition had been complied with. If a possible breach was brought to its attention, it would investigate this. In this case, it had not received any concerns about breaches of the 2013 planning conditions until Mr C raised this in 2018.
34. It responded to the other complaints and said:
• The building regulations issue was ongoing but the works required were minor and would not affect Mr B’s apartment. In its response to the Ombudsman it acknowledged that progress had been slow but said enforcement would not be appropriate or proportionate as the breaches did not affect occupant safety.
• Planning and licensing were two different matters. The planning department could make its own decision about what representations to make to the licensing review or whether to attend the hearing.
• The person who investigated the complaint was of the senior management team and sufficiently senior to investigate the complaint.
• It said Mr C sent a lot of emails and his timeframes for a response were sometimes unrealistic. However, it acknowledged it was at fault for saying it would respond by certain times and then failing to do so. It said this meant Mr C then continued to seek a response adding to his frustration. It apologised for the fault.

Analysis

Lack of enforcement for alleged breach

35. The Council has considered whether there has been a material change of use. In doing so, it has compared the current use of property K with the different uses authorised in the 2013 application. That is the correct test. There is no need for property K to be used in exactly the same way as was envisaged in 2013. The question is whether it is still a café bar restaurant on both the ground and the basement floor.
36. The Council explains that the change to an internal layout does not mean that there was a change of use. Changing the layout also does not constitute development that requires planning permission.
37. From Mr B and Mr C’s point of view, the loud music is the main problem with the bar. However, the Council has explained that a bar can have loud music and that does not change its use from a bar to a different use.
38. The Council says the membership fee allows clients to stay in the basement bar during the day and use it as a co-working space. Members have access to unlimited tea and coffee, but no other privileges. The Council argues that this means there is no real difference to a café bar.
39. I agree with Mr B and Mr C that a co-working space could, theoretically, be a new use. However, the word ‘co-working space’ can mean different things. Some co-working spaces resemble large office spaces whereas, in other cases such as this one, it means a person can bring a laptop and work from the café or bar. The Council says that this does not constitute a change of use and it has some discretion in that decision.
40. In any event, even if the Council said the co-working space or membership fee was a change of use, it is doubtful whether this was the type of change of use that would require enforcement as it is difficult to find any evidence of harm of planning interest by this use. The real objection is the loud music and that is part of the use of the bar.

41. Overall, the Council has considered the facts and applied the correct test as set out in the planning guidance and its own policy. I find no evidence of fault in the way it has done this. The Ombudsman cannot question the merits of the Council’s decision where the relevant issues have been taken into account.

42. I have not investigated Mr C’s complaint that the Council should have enforced the lack of compliance with the condition to carry out the sound insulation works after the original acoustic report in 2013. Mr B and Mr C did not make a complaint about this at the time and therefore this complaint is out of time.
43. However, I have considered whether the current delay in taking any enforcement action regarding this condition is fault. The Council does not say so explicitly but my reading of the documents is that it agrees that Mr D is in breach of the 2013 condition to put in sound insulation works in line with the 2013 acoustic report.
44. The Council has imposed a new licence condition which requires Mr D to provide an updated acoustic report. This takes into account the noise levels from the new music systems and requires readings from Mr B’s apartment. The licence condition requires Mr D to carry out works to address any noise leakage from property K to Mr B’s property as set out in the report.
45. The Council says the new licence condition addresses Mr B and Mr C’s concerns much better than the original 2013 planning condition could. Therefore, the Council says it is not taking any enforcement action for the lack of sound insulation works from the 2013 condition. Instead it expects Mr D to comply with the new 2018 report.
46. I find no fault in the way the Council considered whether it should take enforcement action. Mr B and Mr C agree that the 2013 acoustic report is now redundant in many ways as it related to background music only and did not take any readings from Mr B’s apartment. Therefore, it would be difficult for the Council to enforce compliance with this report when a more relevant report is available. The acoustic expert who wrote the new report has considered both the current building regulations and the Council’s own planning guidance on noise in his assessment of the noise.
47. The 2013 planning permission says the premises can stay open until 1 am. The Council agrees that the 1 am planning condition remains enforceable. Mr C has provided evidence that, in the past, bar K has been advertised as being open until 3am. It is clear therefore that in the past, Mr D was planning for bar K to be open later than the licence or the planning permission would allow.
48. However, since Mr B and Mr C have made their complaint, it seems Mr D has changed the hours. The Council officers have attended on many occasions in the evening at different times and they have not witnessed a breach. The Council says it therefore has not taken enforcement action but would do so if there was a breach.

Other complaints

49. I find no fault in the Council’s decision not to send anybody from its planning department to the licensing review. The Council had discretion to make that decision. Planning and licensing are different departments which operate separate enforcement regimes. The owner of a licensed business must ensure compliance with both the planning conditions and the licence conditions but the breach of a planning condition, for example, would not mean enforcement by the licence department. They would be dealt with separately.
50. I agree with Mr B and Mr C that it is good practice for different council departments to work together. His complaint was about noise and this cut across different functions of the Council.
51. Mr C says Mr D has been able to evade enforcement action because of the ‘silo’ mentality of the planning and licensing department. However, I note that, on the issue of the noise, there is cooperation between the two departments as both departments are expecting Mr D to comply with the new licence conditions and to carry out the soundproofing works identified by the expert.
52. I have considered Mr C’s complaint that the Council’s reply to his complaint is flawed as one of the people he complained about was senior to the person investigating the complaint.
53. The Council has investigated the complaint in line with its procedure. A senior manager from the department replied to stage 1 of the complaint and the stage 2 response was provided by the Corporate Complaints Team. Mr C sent a lot of emails to different people and some were to a very senior person. However, that did not mean this person had any real involvement with the complaint and there was no reason why the senior manager of the department could not respond to the complaint.
54. In any event, the second stage complaint was dealt with by another department altogether and came to the same conclusions as the first stage. Mr C says this person is also not senior to one of the people he complained but that would be quite common in complaints responses. The complaints department is sufficiently separate from the other departments to be able to respond to complaints.
55. The Council has already upheld Mr C’s complaint about the poor communication from the Council in response to Mr C’s emails about the planning breach. The Council says its fault is the poor management of Mr C’s expectations because officers would promise a response by a certain time and then not deliver it. It has apologised for this fault. I agree there was fault in the Council’s communications with Mr C in relation to the alleged planning breached and that there was a delay in providing him with a clear response. There is also no note of the visit the Council took to look at the premises which is fault, although the Council has explained its reasons for the decision in the correspondence with the complainants.
56. Mr C raised the planning breach in February 2018. There is no record the Council took any action to assess the alleged breach or visit the premises between February 2018 and May 2018. There is no record that it visited the premises in relation to the breach of the planning permission until June 2018 when it decided that there was no breach.
57. The Council did not explain its new decision regarding the planning breach and its reasons to Mr B and Mr C. It did not do so until Mr B and Mr C raised a complaint about the Council’s actions in July 2018 and the Council responded in August and September 2018. Therefore, my view is that there was delay and poor communication between the Council and Mr B and Mr C relating to the alleged breach of the planning permission.
58. I have carried out a limited investigation into the issue of the building regulations. Firstly, even if the Council decided to take enforcement action for non-compliance with the building regulations, this would not result in the closure of the premises which is the outcome Mr B and Mr C are seeking. Secondly, most of the outstanding issues in terms of non-compliance do not affect Mr B’s property so they would not cause him any injustice. I have asked a further question in terms of the fire safety as this is an issue that would affect Mr B and Mr C. The Council has said that the fire brigade has carried out its own audit of the premises so they would address any concerns.

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Agreed action

59. The Council has already apologised for the fault in the communication about the planning enforcement. It has also made a service improvement by ensuring that all officers take responsibility to ensure effective communication. This will include better monitoring of self-imposed deadlines by all planning staff and their managers and being clear about what can be achieved in the timeframe proposed. That is a suitable remedy for the fault.

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Final decision

60. I have completed my investigation. The Council has already remedied the fault.

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Parts of the complaint that I did not investigate

61. I have not investigated the complaints that:
• The Council did not properly consult with residents before considering the 2013 planning application.
• The Council failed to take enforcement action in 2013 about the failure to comply with the condition that acoustic works should be undertaken in line with the acoustic report.
62. These complaints are more than a year old and Mr B and Mr C could have raised the complaints at the time.
63. I have not investigated Mr C’s complaint that the Council has not sent him documents he asked for in line with the Freedom of Information legislation. The Information Commissioner’s Officer deals with complaints about disclosure of information and Mr C should direct this complaint to them.

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Investigator's decision on behalf of the Ombudsman