Summary: Mrs B complains about how the Council responded to her concerns about her neighbours. She says the neighbours are living on the land without planning permission and running a business from the land. She says their actions are intimidating and cause a significant nuisance. The Ombudsman does not find fault in how the Council investigated occupation of the land or nuisance. We find some fault in how the Council investigated Mrs B’s concerns about the operation of a business. However, this did not cause significant injustice to Mrs B.

The complaint

1. The complainant, who I refer to as Mrs B, complains the Council refuses to do anything about her neighbours living on land next to her home. She says the Council is allowing the neighbours to deceive them about the purpose of living on the land. She also says the Council has not properly considered her concerns about the neighbours running a business from the land. Mrs B says she has suffered a loss of privacy and enjoyment of her property as a result. Mrs B also raised several concerns about the behaviour of her neighbours, including damaging her land, placing a CCTV camera overlooking her home, parking cars on the roadside and nuisance from noise and dust.

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What I have investigated

2. Mrs B’s complaints are wide ranging. She raises concerns about many actions and activities by the neighbour. Some of these are private matters and not all are capable of investigation by the Council. I have focussed my investigation on the three key points the Council has investigated, which could cause significant injustice to Mrs B. These are:
• The occupation of mobile homes on the neighbouring land
• The alleged change of use to a business premises
• Statutory nuisance from noise and dust

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The Ombudsman’s role and powers

3. 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)
4. 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)
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 reviewed the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments.

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What I found

Legislation and guidance

7. Planning permission is needed to develop land (including its material change of use). Councils may grant planning permission subject to conditions on the development and use of land.
8. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.
9. The use of land as a caravan site is a permitted development in the following circumstances:
• when building operations are taking place on the land; and
• the caravans are used for accommodating a person or persons employed in connection with the operations.
10. Councils can take enforcement action if they find planning rules have been breached. However, councils should not 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)

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
• Typical things which may be a statutory nuisance include:
• noise from property or vehicles, equipment or machinery in the street
• smoke from property
• smells from industry, trade or business property
• artificial light from property
• insect infestations from industrial, trade or business property
• build-up or deposits on property
12. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.

Background

13. Mrs B lives next to what was previously a small field. Between 2015 and 2019 the land has been subject to several planning applications, meaning it has a complex planning history. The current position is that the land is split into three plots, each of which has a different registered owner, and each has planning permission to build two homes. The different owners are set to work together to build the allowed six homes across the land.
14. Planning permission was granted for each development with the condition that various plans and details for the works were submitted to the Council, before any building took place above the damp proof course.
15. In mid-2017 the Council allowed one of the owners of the land to place a mobile home on site. Mrs B says the mobile home arrived in February 2017, before the Council gave permission. The owner intended to live in the mobile home with his mother and father, who are also owners, while completing the building works. The Council decided this was allowed by the permitted development rights referred to at Paragraph 9 of this statement. The owners said they intended to carry out the works themselves, with the help of a third party.
16. Mrs B complained about the occupation of the mobile home. She also complained about various other issues, such as the owners parking cars on the verge next to the road at the front of the land. She said this was a danger as it reduced her visibility when reversing from her driveway.
17. The Council opened a planning enforcement investigation and visited the site. It noted the presence of cars but did not find this caused significant harm to Mrs B. It also explained to Mrs B why it considered the owners did not need planning permission to live in the mobile home while completing the works. The Council closed the case with no breach of planning permission.
18. Mrs B also complained about noise and dust from the works. The Council’s environmental health (“EH”) team opened an investigation into whether a statutory nuisance existed. However, the EH team decided not to investigate further as the planning response seemed to have resolved the issues.
19. Around two months later Mrs B complained the owner had placed another mobile home on the site. The Council opened another enforcement investigation. It carried out a site visit and noted the presence of two mobile homes. It spoke to the owner, who said he would live in one and his mother and father in the other.
20. The Council noted only minor building works had taken place by this point, such as a widened access point and infrastructure for the mobile homes. The owner said there were some delays in the third party arriving on site. He said works were due to start in late 2017 but were now delayed until early in 2018.
21. The Council found no breach of planning conditions. It said occupation of the mobile homes remained a permitted development as the occupiers were involved in the works.
22. In early 2018 Mrs B complained the owners were not carrying out any building works but still occupied the mobile homes. The Council opened a new planning enforcement investigation. It carried out a site visit and found the owner had excavated the land but not started work on the houses. The owner said he would install electricity and water supplies shortly but full building works were delayed until mid-2018. The delays appeared to be around sending the further plans to the Council before work could start above the damp proof course.
23. The owner also said that he was not now occupying either mobile home. The owner then removed one of the mobile homes, which he later replaced with another. The owner said he, his mother and father were due to move into the mobile homes again shortly, while building the homes.
24. The Council contacted the third party. It carried out further site visits and drive by observations. It found there was no planning breach. It recognised that full works on the houses had not started. However, the owner had carried out some activities and was due to start full works. It found it would be unreasonable to ask the owner to vacate the land while the work was temporarily ceased.
25. Mrs B also raised concerns about noise and dust from what appears to be machinery involved in the excavations. The Council’s EH team opened a statutory nuisance investigation in early 2018. At first it found no evidence of a nuisance. However, following later out of hours site visits in mid-2018, it witnessed noise and dust amounting to a statutory nuisance.
26. The Council served abatement notices on all the owners of the land, and notices requiring works only to take place during certain hours. Mrs B confirmed that, following the abatement notices, the nuisance had stopped. The Council therefore closed the investigation.
27. In late 2018 Mrs B complained to the Council about the owners burning parts from mobile homes on the land. She also complained the owners had replaced one mobile homes with another and brought another shipping container onto the land. Mrs B said the neighbours were using the site to refurbish and sell mobile homes, without planning permission for business use. Mrs B also says the neighbours were selling goods online from the shipping containers.
28. The Council opened a statutory nuisance investigation and a planning enforcement investigation.
29. The EH team did not take the statutory nuisance investigation any further. It advised Mrs B to contact the Council if burning of parts happened again, while the nuisance was ongoing.
30. The planning enforcement team visited the site. It noted there were two mobile homes present. It spoke to the owner who denied running a business on the site and gave reasons for why he had replaced another mobile home. The Council found it did not have any evidence the owner was running a business from the site. It noted the owner had not made any further progress with building works but said the owner again gave reasons for the delay.
31. Mrs B sent an email to trading standards at the Council about the owner selling several cars from the property. Trading standards forwarded this on to the planning enforcement team. The team did not make enquiries about this as part of its planning enforcement investigations going forward. Mrs B raised this again in early 2019 in a complaint letter, but the Council did not follow up on this. The Council did make enquiries in October 2019 and found no evidence of a breach of planning permission.
32. The Council made further enquiries of third parties involved in the build. It carried out further site visits and drive by observations. It did not find any evidence of a breach in terms of the owners living in the mobile homes. This is because the information it obtained showed the work was due to go ahead, despite being delayed by various matters. These matters included completing the pre-commencement conditions in the planning consent notice. It found that, on balance, the occupation was permitted while the work was intermittent and had temporarily ceased.
33. The Council decided to close the case in early 2019. However, Mrs B made further complaints to the Council about the new mobile home and the impact on her privacy. Mrs B asked the Council to pay for a fence between her land and the field to protect her privacy. The Council did not do this.
34. The Council carried out more observations of the site and spoke to the owner on several occasions. It continued to chase up on the delays in the building works. In mid-2019 the owner replaced the mobile home nearest to Mrs B’s fence with a different one that he said had a smaller, obscured window. There were delays in the owner removing the old mobile home, which meant for around a week there were three mobile homes on the land. The Council carried out several more drive by observations after this and noted there were only two mobile homes on the land.
35. The owners submitted applications to discharge the planning conditions. The Council confirmed the owner had complied with the reserved matters in August 2019. The Council continued to follow up with the owner, who confirmed in late 2019 that everything was in place to start the build. The Council says it will continue to follow up on this and keep the matter under review.
36. In August 2019 Mrs B made a complaint to the Council about overgrown vegetation from the neighbouring land impacting on her garden. The Council advised Mrs B this was a private matter and there was no action the environmental health team could take.

Findings

37. I have investigated the responses from different teams at the Council:
• Planning enforcement team
• Environmental health team

Planning enforcement

38. Mrs B’s complaint to the planning enforcement team can be split into two issues:
• The owner and his family are living in mobile homes on the land without planning consent.
• The owner is running a business from the land, which represents a material change of use, for which he does not have planning consent.

Mobile Homes

39. I do not find fault in how the Council has looked into Mrs B’s complaint about the owner living on the land.
40. I understand Mrs B’s concerns. The owner and his family have lived on the land for three years and, in most of that time, no building work has taken place. This does not, on first look, appear to be consistent with the permitted development rights.
41. The impact on Mrs B is a potential loss of privacy. The mobile homes are placed next to her back garden and one appears to have a view of the windows at the back of her house. Permitted developments can take place without considering privacy or other loss of amenity, whereas if the owner needed planning permission, Mrs B could object on this basis. Mrs B says she has spent money on erecting a fence to protect her privacy.
42. While I understand Mrs B’s concerns, I can only consider whether there is fault in how the Council investigated the alleged planning breach and how it considered whether to take enforcement action. Only the Council’s planning enforcement officers can decide whether there is a breach and if so, whether it is expedient to take enforcement action. It is not my place to criticise the Council’s decision unless there is evidence of fault in how it carried out its investigation or that it dd not consider all the available information.
43. There does not appear to be any question that permitted development rights allow a person to live in a mobile home on a site where building works are taking place, if they are involved in completing the works. The questions for the planning enforcement team in this case were whether:
• a) building works were taking place on the land
• b) the people living there were involved in the building works
• c) if building works were not in evidence, was it expedient to take enforcement action
44. The Council has carried out several comprehensive investigations into Mrs B’s concerns. It is satisfied the people living in the mobile homes are involved in the works. It accepts that works have not taken place for a long time. However, it notes that some work was completed in 2018, below the damp proof course. It found the owner provided reasonable explanations during each investigation for why there were delays in continuing with the works.
45. The Council did all it could during each investigation to get information about why there were delays and when work was due to start. It spoke to Mrs B, the owner, visited the site and contacted other parties involved in the build. There is no fault in how it carried out the investigations.
46. The Council decided each time that, based on the available information, it would not be proportionate to instruct the owner to vacate the land while works had temporarily ceased. In effect, the Council decided the owner was, at first, living on the land in line with permitted development rights as he was involved in the works. The evidence available did not yet show that works had permanently ceased, or that it had become expedient to take enforcement action while the works were on hold. The Council kept this under review and revisited the matter every time it investigated.
47. The Council has properly looked into Mrs B’s complaints and reached a decision based on all the relevant information. I therefore cannot find evidence of fault and cannot question the merits of the Council’s decisions. It is unfortunate the works have been delayed for so long. However, I understand the Council now has a confirmed start date for the works and will continue to keep the matter under review.

Change of Use

48. Mrs B complained that he owners of the land were running a business in that they were:
• keeping goods in shipping containers and selling them online
• refurbishing caravans
• selling used cars
49. The Council carried out site visits, spoke to the owner of the land and to Mrs B. It reviewed photographs that Mrs B provided. It noted that several mobile homes had come and gone from the site. The number appears to be five in total, including the two that are remaining. That means three mobile homes have left the site.
50. The Council raised the issue with the owner each time he replaced a mobile home. It decided he had provided reasonable explanations for why he was replacing the homes on each occasion. It found there was no evidence the owner was using the land as a business to refurbish and sell mobile homes.
51. The Council also noted the presence of shipping containers and discussed this with the owners. It considered the owner’s explanations that he used the shipping containers for personal belongings and equipment for the building works. It did not find any evidence of the containers being used for a business separate to the building works.
52. The Council properly examined Mrs B’s concerns. It made decisions based on the information it obtained. It is not my place to question the Council’s professional judgement and there is no evidence of fault in how it reached those decisions.
53. I note the Council did not follow up on concerns about selling cars until October 2019, when it received that information on at least two occasions in 2018 and early 2019. On balance then, I find fault. However, I do not find this caused significant injustice to Mrs B, such that I would recommend a remedy.
54. If the Council had investigated and found a material change of use in the selling of cars, it might have decided to take enforcement action. That enforcement action would have been to prevent the activity continuing. The Council has made enquiries on this point in October 2019 and found no evidence of a breach of planning permission. There is no suggestion that trading of cars is ongoing, or that any previous activity was of a level capable of amounting to a breach of planning permission. Therefore, I cannot say that, but for the fault, the Council would have taken any different action.

Environmental health

55. I do not find fault in how the Council’s environmental health team has investigated Mrs B’s complaints of nuisance.
56. I note the Council first logged a complaint in June 2017 and did not follow up on this. It says this is because the planning enforcement team were addressing the concerns. I do not find fault in this respect as it does not seem any further work to place on the site until early 2018. Therefore, it is unlikely any nuisance was ongoing during this time.
57. The Council investigated Mrs B’s complaint in early 2018 about the works taking place. It found there was a nuisance and served abatement notices on the owners. Following this the nuisance ceased. I therefore do not find fault in the Council’s response.
58. The Council provided clear explanations for why it would not investigate further concerns about burning caravan parts and overgrown vegetation. This was because it can only look into continuing issues capable of amounting to a statutory nuisance. I do not find fault.

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Final decision

59. I do not find fault in how the Council investigated occupation of the land or nuisance. I find some fault in how the Council investigated Mrs B’s concerns about the operation of a business, but this did not cause significant injustice to Mrs B.

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Parts of the complaint that I did not investigate

60. Mrs B also raised concerns about her neighbour putting up a CCTV camera that overlooks her property and impacts on her privacy. I have not looked into these concerns as Mrs B may raise any concerns about her neighbour capturing images of her on the CCTV camera with the Information Commissioner (“ICO”). We have discretion to investigate concerns about data protection. However, in this case the ICO is better placed to deal with a complaint of this nature.

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Investigator's decision on behalf of the Ombudsman