Durham County Council (18 010 438)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 11 Apr 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council has not taken planning enforcement action against the change of use of a neighbouring property. He says noise from the property is disrupting his family’s sleep. The Ombudsman does not find fault in how the Council considered Mr B’s initial complaint. However, he does find fault in how the Council investigated information it received later. The Council has is now remedying the injustice caused by carrying out further enquiries.

The complaint

  1. The complainant, who I refer to as Mr B, complains about the operation of a taxi business from a neighbouring property. Mr B says taxis leave and return to the property at unsociable hours. He and his family are regularly woken by the engines and slamming of doors. Mr B says his daughter is disabled and his wife recently suffered from a stroke. He says sleep is very important to their health.
  2. Mr B says the Council should require planning permission to run a taxi business as it is a particular use of land. He refers to decisions by the Planning Inspectorate, the position of other local councils and the Council’s Local Plan.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. I considered the information Mr B provided. I then spoke to Mr B about the complaint and made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments and have taken account of the comments received. This decision has subsequently been reissued in the light of further comments.

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What I found

  1. Uses of land are separated into different classes. For instance, dwelling houses are Class C3. Not all uses of land fit within the classes order. A ‘sui generis’ use is where the building has a use of its own kind. An example may include a taxi business. Mixed uses of land are also normally sui generis, except where one use is ancillary to the primary use.
  2. Planning permission is required when work being carried out is classed as a ‘development’. The definition of development is set out in the Town and Country Planning Act 1990. It includes material changes of use to land and buildings.
  3. There is no statutory definition of a material change of use. It is a matter of fact and degree, which must be determined on the individual merits of the case. The significance of the change and its impact on the use of land and buildings should be considered.
  4. Planning permission is not normally required to run a business from home, provided it remains a private residence first and a business second. This means planning permission is not required when the business does not result in a material change of use.
  5. Local authorities should consider issues such as notable increases in traffic, disturbance to neighbours or abnormal noise. It is a matter of judgement for local authorities to decide whether these factors are significant enough to show a material change of use.
  6. If it does find a material change of use the local authority may decide to take enforcement action. The owner may then apply for planning permission or appeal against the enforcement notice to the Planning Inspectorate.

Background

  1. Mr B lives on a residential street with his wife and daughter. His daughter is disabled and his wife recently suffered from a stroke. Mr B says seep is therefore important to their health and well-being.
  2. Mr B’s neighbour runs a taxi business from home. Mr B says he and his family are often woken by taxis leaving and returning at unsociable hours of the night. Mr B says he is woken by slamming doors, revving of engines and transfers between two different taxis.
  3. In mid-2017 Mr B complained to the Council about the disturbance. He said the owner should need planning consent to run a taxi business from home. The Council visited the site and took photographs. There was no taxi at home at the time and building work was in progress.
  4. Mr B complained again a few weeks later due to disturbance in the early hours of the morning. He had also received a text from the neighbour, which he said was a veiled threat to stop him complaining to the Council. The Council advised Mr B it did not have evidence of a material change of use. It said two taxis were registered to the address and it would expect some coming and going at night. However, it did not have evidence of enough activity to warrant enforcement action.
  5. The Council asked Mr B to provide any further information, such as logs, showing the level of activity. It asked him to forward any information about threats from the neighbour to its licensing team. The licensing team could consider any concerns about whether drivers were ‘fit and proper’.
  6. Mr B sent an email to the Council with a log of when taxis left and returned to the property. The log showed activity at night and in the early hours on nine occasions over two weeks. The listed activity did not amount to more than one taxi in and one out per day. Mr B said this was only a sample of the times taxis left and returned and there would have been more. He said the business was advertising as a 365 day a year, 24 hour a day service. He sent the Council CCTV pictures showing taxis at the property.
  7. Mr B sent further emails to the Council detailing individual occasions the taxis woke him. He said the disturbances woke him and his family two to three times a week. He also referred to decisions by the Planning Inspectorate that found taxi businesses were likely to cause a disturbance and required planning permission. Mr B noted several other local authorities required taxi businesses to obtain planning permission to run from home.
  8. The Council informed Mr B it had an enforcement investigation open but planned to close this unless it received further information. It said, on the evidence available, it did not consider the level of activity was more than that of a normal household. It gave the example of a household where the occupant worked shifts, so would leave and arrive home at unsociable hours once a night.
  9. The Council wrote to Mr B with its outcome. Mr B asked the Council to consider the matter as a formal complaint. The Council did not recognise Mr B’s complaint until he chased for an answer more than a month later. The Council then investigated the matter as a Stage 2 formal complaint.
  10. The Council completed its investigation in early-2018. It did not uphold Mr B’s complaint. It responded to Mr B’s points about the relevant law. The Council explained it considered the property’s primary use was still residential and the taxi business ancillary. It did not have evidence of enough activity to suggest a material change of use. Therefore, it would not take enforcement action.
  11. In mid-2018 Mr B’s wife, Mrs B, complained to the Council again by telephone. She said the activity had intensified and three taxis were now working from the property.
  12. The Council visited the site again twice, two months apart. Other officers viewed the site when driving past the property. Officers saw only one taxi on each of these occasions. The Council therefore remained of the view there was no evidence of material change of use and closed the complaint.

Analysis

  1. This matter may be split into two separate complaints. The first complaint in mid-2017 led to a prolonged investigation and complaints process, which concluded in early-2018. The second is a telephone call from Mrs B in mid-2018, in which she suggested the activity had increased.
  2. It is my view the Council is not at fault in how it investigated the first complaint. However, it is at fault for not properly investigating the second complaint.

First complaint

  1. Mr B says taxi businesses are classed as sui generis. He says any change of use to a sui generis use should require planning permission.
  2. If the sole use of the property was now a taxi business, Mr B would be right. However, its primary use is residential. Planning permission is not normally needed to run a business from home. It is a matter of fact and degree for the Council to decide whether the activity is enough to find a material change of use at the property. That a taxi business is a sui generis use is irrelevant to this consideration.
  3. Mr B told me taxis come and go up to four or five times every night at unsociable hours. However, the only information the Council had to go on is that contained in Mr B’s emails. In those emails Mr B suggests taxis come and go no more than once a night, around three times a week. The Council also visited the site and saw no evidence of more than one taxi. The Council decided this was no more than a normal household where, for instance, a person worked shifts.
  4. Based on this information, I cannot say the Council was at fault in the way it considered how significant the activity was. It is reasonable for the Council to say this is no more than a household where a person works shifts.
  5. Mr B refers to Planning Inspectorate decisions that found taxi businesses running from home could be a nuisance and needed planning permission. However, the relevance of these decisions is limited, as are the policies of other local authorities.
  6. The question of whether there has been a material change of use is a matter of judgement for the Council on the facts of the particular situation it is considering. The fact the Planning Inspectorate found other taxi businesses have needed planning permission, does not mean there has been a material change of use in this case. Each case is judged on its own merits. Whilst the decisions Mr B refers to are similar, and involve taxi businesses at home, the facts are still different and not every case will have the same result. Provided the Council has properly investigated the matter, considered all relevant information and reached a conclusion it can justify, I cannot find fault with its decision.
  7. In this case, the Council did properly investigate. It found on the evidence that the primary use of the property remained residential and the taxi business was ancillary. It did not consider the amount of activity from the taxi business led to a material change of use. It is not my place to question the merits of the Council’s decision and there is no fault in how it reached the decision.
  8. Mr B has commented about the Council’s Local Plan policies. However, these have no relevance in deciding whether there has been a material change of use. They can only become relevant when planning permission is required.
  9. The Council delayed for over a month in responding to Mr B’s formal complaint about the outcome of its investigation. It should not have delayed as it was clear from Mr B’s email he wished to complain formally. The Council did eventually complete the complaint investigation and, again, I cannot criticise its findings.
  10. It is unlikely the delay changed the outcome of the investigation, so this oversight is not so significant, in of itself, that I would find fault with the Council. It should, however, keep in mind the need to ensure complaints are acted on in good time.

Second complaint

  1. It is my view the Council did not properly investigate following Mrs B’s telephone call in mid-2018. At this point, Mrs B said the activity had intensified. She said three taxis were now running from the property at unsociable hours.
  2. The Council appears to have been more dismissive of the complaint at this stage, as something it had already looked into and decided. An email from a Council officer suggests he tried to ‘head this one off’. This is fault because Mrs B provided information that the extent of the business had changed.
  3. The reason the Council previously found no material change of use, was because there was only evidence of one taxi coming and going once a night. However, Mrs B’s call suggested this had increased to three taxis operating more often. This fits with the information Mr B gave me that activity has increased, and taxi’s now wake him up to four or five times a night. The Council needed to establish whether this apparent increase in activity meant there was now a material change of use.
  4. I can see the Council did visit the site shortly after Mrs B’s call and only saw one taxi. This visit took place at mid-day. Other officers informally drove past the property occasionally and did not see evidence of more than one taxi. However, there are no records of those visits. Also, infrequent spot check observations of this nature are of limited worth in establishing the level of vehicle movements and disturbance generated by a taxi business use.
  5. There is no evidence the Council contacted Mr or Mrs B to ask them for more information about the increased timings and frequency. The Council did not ask Mr or Mrs B for logs or photographic evidence, as it had before. There is no evidence it asked its licensing team to confirm how many taxis were now registered to the address, as it did before.
  6. It appears the Council simply closed the complaint based on the findings of its previous investigation and the observations mentioned above. The Council should have obtained more information from Mr and Mrs B about how the activity had increased. It should then have properly considered if this changed its position about whether there had been a material change of use. The Council’s failure to do so was fault.

Agreed action

  1. The Council agreed to, within a month of this decision:
    • carry out further enquiries into the extent and frequency of the taxi business’ current operations;
    • consider any evidence provided by Mr and Mrs B, together with the Council’s own observations; and
    • decide whether there is evidence of increased activity to the extent it considers amounts to a material change of use.
  2. The Council is now taking the action I recommended.

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Investigator's decision on behalf of the Ombudsman

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