Horsham District Council (18 014 046)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 08 Jul 2019

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to consult him on a planning application and its failure to take enforcement action. Mr X says that because of this, the way the land next to him is used causes disturbance to him. There was some fault in the way the Council made its decisions, but it did not cause a significant injustice to Mr X.

The complaint

  1. Mr X complains about the Council’s decision to approve a planning application and later not to take enforcement action to protect him from the use of the building next to his home.
  2. Mr X says the building, which received planning approval in 2015 for a mixed use as an office and for non-residential public use, causes noise disturbance from visitors and amplified music. Mr X says he did not receive a notification from the Council about the planning application in 2015.
  3. Mr X says he is regularly woken early on weekend mornings by noise from people using the building and later disturbed by amplified music. Mr X says he is sometimes disturbed by noise from BBQs held in the building’s car park.
  4. Mr X also says the Council failed to take account of his personal circumstances before it made its decisions.

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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’. 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)
  2. 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)

  1. 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)
  2. 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)

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How I considered this complaint

  1. 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.
  2. I gave the Council and Mr X an opportunity to comment a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. Planning considerations do not include things like:
    • Views other another’s land;
    • The impact of development on property value;
    • The personal circumstances of individuals;
    • Private rights and interests in land.
  4. Councils cannot give any weight to matters that are not materially relevant to their decisions.
  5. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  6. Government guidance on planning conditions says that they should be:
    • necessary;
    • relevant to planning and the development;
    • enforceable;
    • precise; and
    • reasonable in all other aspects.
  7. 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.
  8. Regulations set out the minimum requirements for how councils publicise planning applications.
  9. For major development applications, councils must publicise the application by:
    • a local newspaper advertisement; and either
    • a site notice; or
    • serving notice on adjoining owners or occupiers.
  10. For all other applications, including minor developments, councils must publicise by either:
    • a site notice; or
    • serving notice on adjoining owners or occupiers.
  11. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
  12. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

Background

  1. In 2015 the Council received a planning application to change the use of a commercial building next to Mr X’s home. Its records show it produced and printed a neighbour notification letter for Mr X’s address.
  2. A planning case officer considered the application plans and wrote a report recommending approval. The report includes:
    • a description of the proposal and its location;
    • relevant planning history of the site;
    • relevant planning policy and guidance;
    • comments from consultees;
    • an analysis of the main planning issues; and
    • a recommendation to approve, subject to planning conditions, which included a restriction on hours of use.
  3. The Council approved the 2015 application.
  4. In 2016 the Council received an application to vary some of the conditions of the 2015 planning permission. The Council followed the same process it had before and approved the application, with the original and the revised conditions.
  5. Mr X says he suffered an injury in 2015 and spent most of the next year in hospital and rehabilitation clinics. Mr X said he could read post collected from his house. He says that if he had received a notification letter from the Council, he would have read it.
  6. Mr X says he returned to live at home shortly after the 2016 application was approved. He says he did not realise the use of the building had changed significantly until November 2016, when the occupants began disturbing him.
  7. Mr X complained to the Council about the noise and spoke to planning enforcement officers. They advised there was no breach of any of the planning conditions on hours of use and suggested he contacted the Council’s environmental protection officers. Mr X did this, but the environmental health officers did not find that noise from the use of the site caused a statutory nuisance.
  8. Mr X also complains the Council failed to stop BBQs happening in the building’s car park.
  9. Mr X read the revised planning conditions in the 2016 approval and his interpretation of them was that they prohibited use of the building on Sundays and Bank holidays. He complained to the Council. The Council agreed the wording of the conditions could have been ‘more succinct’ but thought it was clear enough that use was allowed from Monday to Sunday.
  10. Mr X then complained to the Ombudsman.

My findings

Time limits for investigations – discretion exercised

  1. 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.
  2. 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.
  3. I have used my discretion to look at events that occurred before our 12-month time limit. This is because Mr X was in hospital and/or rehab-clinics for a large part of the time the Council’s planning decisions were being made. The Council has good records for what happened, and I have the information I need to make a sound decision.

Publicity for the application

  1. Mr X says he did not receive the Council’s notification letter in 2015, so did not know there was a proposal to change its use.
  2. Councils are not obliged to show that planning applications are delivered to owners/occupiers. If councils choose to send neighbour notification letters, the nearest we will get in terms of evidence, is a record that they were produced and/or printed. The Council has produced a record that the letter to Mr X for the original application was printed. I have seen no evidence to suggest the letter was not printed and posted and so on balance of probabilities, I think it more likely than not that it was sent.

Planning conditions – 2016 approval

  1. There are two conditions that restrict hours of use on the 2016 approval and one that controls hours for external lighting.
  2. Of the two ‘hours of use’ conditions, the first says:

‘The [use] of the premises shall not be open or in use except between the hours of 0700 and 2300 Monday – Saturdays, including on Sunday or Bank Holidays.’

  1. The second conditions says:

‘No amplified music or amplified speech shall be played/delivered on the premises except between the hours of 0900 and 2300 Monday – Fridays, including Sundays or Bank Holidays’.

  1. Mr X read the 2016 approval and understood the conditions to mean the building’s tenants could not use it or play amplified sound in it on Sundays and Bank Holidays. He says, he thinks this because the comma before the word ‘including’ at the end of the sentence, separates Sundays and Bank Holidays from the hours of use and connects these days to the beginning part of the sentence, before the word ‘except’.
  2. The Council accept the condition is unclear. It says the case officer used the recommendation directly as it came from the environmental health response to the proposal. The senior officer I spoke to says it looks as if the conditions were imported into the final decision without close checking, as he would not expect a condition to be worded this way.
  3. I agree that the wording of some of the conditions (those relating to hours of use) are unclear and so likely to fail the guidance test that they should be ‘precise’. These conditions have not been tested in a magistrate’s court and so I cannot know whether they would or could be enforced, but the fact that they are ambiguous must raise doubts about this.
  4. Where we find fault, we must decide whether it caused a significant injustice to the complainant.
  5. Mr X says the hours of use on the weekend do not extend beyond the Monday to Friday limits. Given the nature of the use, it is unlikely the Council ever intended to prohibit use on the weekends or public holidays. This is because the use approved is connected to activities carried out by individuals in their free time.
  6. The senior officer says that the Council now has new standard conditions, which have been shared with environmental health officers and other consultees. These other services can choose standard conditions that meet the requirements of most circumstances, or suggest bespoke conditions, which the Council can consider.
  7. The senior officer I spoke to says that since the 2016 decision was made, the Council has recruited another senior officer who will help check delegated decisions. This should reduce the chances that poorly drafted conditions going unnoticed.
  8. Mr X also refers to a condition, which says that without written approval, ‘no activity’ should take place outside the building, within its ‘curtilage’ (the land around a building). Mr X believes the Council should use this condition to stop BBQs happening in the building’s car park.
  9. Government guidance states that Council’s should only act if this would be a proportionate response and whether to enforce a planning condition is a matter for the Council to decide.
  10. It is also important to note that not every land-use, development or activity will be controlled by local planning authorities. This is because irregular or occasional use of land is sometimes considered to be permitted development. Providing the Council is aware of Mr X’s concerns and its powers, it is free to decide whether and how to act.
  11. For the reasons given above, I find some fault in the way the Council made its decision but cannot show this caused Mr X a significant injustice.
  12. Because of the changes the Council has since made to its working practices and the additional member of staff it now has, I will not make further recommendations, beyond a reminder that it should carefully check its decisions to ensure it maintains proper planning control.

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Final decision

  1. I found fault in the way the Council made its decision, but this did not cause a significant injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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