Cheshire West & Chester Council (19 004 472)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 10 Dec 2019

The Ombudsman's final decision:

Summary: Mrs X complains the Council has failed to take enforcement action against a neighbour for using a property as a business. There is no evidence of fault in how the Council reached its decision that a business operating from a residential property does not amount to a change of use. The Council is at fault as it delayed in investigating whether there was a material change of use but this did not cause significant injustice to Mrs X. The Council also delayed in responding to Mrs X’s complaint at stage one of the complaints procedure. The Council apologised to Mrs X which is an appropriate remedy.

The complaint

  1. Mrs X complains that the Council has failed to take enforcement action against a neighbour for using a property for business use and for erecting unauthorised buildings. Mrs X says business use of the premises is causing nuisance to her and visitors to the business block her access to her property.

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What I have investigated

  1. I have investigated events from January 2018

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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. (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)

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How I considered this complaint

  1. I have:
    • Considered the complaint and the information provided by Mrs X
    • Discussed the issues with Mrs X;
    • Made enquiries of the Council and considered the information provided;
    • Invited Mrs X and the Council to comment on my draft decision

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What I found

  1. A change of use of a building or land requires planning permission if it constitutes a material change of use. There is no statutory definition of a material change of use but it depends on the significance of the change and the impact on the use of the building or land. So, whether or not there has been a material change of use is a matter of fact and degree and a council should determine this on the facts of the individual case.
  2. Councils must investigate complaints that could be a statutory nuisance for nuisances covered by the Environmental Protection Act. A statutory nuisance is one which a council considers unreasonably and substantially interferes with the use and enjoyment of a person’s home or injure their health or be likely to injure their health. If a council considers there is evidence of a statutory nuisance it can serve an abatement notice. In deciding if a noise amounts to a statutory nuisance, the Council has to take account of factors such as the frequency, duration and characteristics of the noise.

What happened

  1. Mrs X lives close to a property from which a business operates. She also has a shared access with the property. Mrs X first complained to the Council in 2015 that the occupiers of the property were running a business from the property and this amounted to a change of use. The Council’s environmental health service were also involved as the business required a licence. I refer to this by way of background only as I am not investigating events before 2018.
  2. In spring 2018 officer A, planning enforcement, visited the site but could not gain access. He visited again in summer 2018 following a further complaint but could not gain access to the property.
  3. The Council’s records show officer A then had a meeting with Mrs X, her local councillors and an officer from environmental health to discuss the concerns about the business. Officer A undertook to visit the property. He also viewed information provided by Mrs X.
  4. Officer A, officer B, a senior officer, and officer C, environmental health visited the property in autumn 2018. The record of the site visit notes officers viewed the entire property and how it was used for the business. They inspected an outbuilding which they considered was used for domestic storage. The record of the visit also notes officer B referred possible noise nuisance from the business to environmental health to investigate.
  5. The Council installed noise monitoring equipment in Mrs X’s property for a week. Officers’ analysis of the noise recordings show Mrs X made 14 recordings over the week which captured short instances of noise during the day. Officers concluded that as the noise was for a short period of time, with the longest period being just over a minute, it did not amount to a statutory nuisance.
  6. The Council decided that that the business use of the property did not amount to a change of use from residential to business use. Officer A set out his reasoning in a report. He concluded that there had been no material change of use because:
    • The property was used as a dwelling;
    • The business operates mainly indoors;
    • The property has not been adapted to accommodate the business use;
    • The noise monitoring showed the noise from the business does not have a significant effect on the amenity of the area;
    • Visitors are by appointment and there is no evidence of the number of vehicles calling at the property.
  7. The Council notified Mrs X’s councillor of the decision. Mrs X complained to the Council about the decision in January 2019. The Council responded to Mrs X at stage one of its complaints procedure in May 2019. It apologised for the delay in responding but did not uphold Mrs X’s complaint. The Council also did not uphold Mrs X’s complaint at stage two of the complaints process.
  8. The Council now considers there is evidence to show there is a change of use from residential to business use at the property due to use of the outbuilding for the business. The Council has said officers will be tasked with taking enforcement action.

My assessment

Noise monitoring

  1. There is no evidence of fault in how the Council reached its decision that the noise from the property did not amount to a statutory nuisance. The Council reached this view after carrying out noise monitoring for a period of a week and after analysing the noise recorded. So, the Council was in a position to make a judgement on whether the noise amounted to a statutory nuisance. As there is no evidence of fault in how the Council investigated the noise, I do not have grounds to question officers’ professional judgement that the noise did not amount to a statutory nuisance.

Change of use

  1. There is no evidence of fault in how the Council reached its decision that the business operating from the property amounted to a change of use. The Council has met with Mrs X, considered information provided by her and visited the site. So, the Council was in a good position to make a decision on whether the operation of the business from the property amounted to a change of use. Officer A’s report sets out what he made of the evidence and why he considered the operation of the business did not amount to a material change of use. I acknowledge Mrs X disagrees with the Council’s decision but as there is no evidence of fault in how it was reached, I do not have grounds to question it.
  2. In commenting on my draft decision, Mrs X has said a planning application from 1990s shows the property has four bedrooms not three as referred to in officer A’s site visit notes and report. She also considers the video evidence shows more use than referred to in the officer A’s report. Mrs X considers this shows officers did not properly inspect the property.
  3. Officer A’s site notes record he and officer C were given free access to the property by the occupiers and his notes record his inspection of the rooms. It is possible the internal layout or use of the rooms has changed since 1990s. I have viewed the plans from 1990s and I consider it is likely the officers would have been able to see the fourth bedroom if it had been there or in use. Officer A had viewed the video footage before visiting the property so would be aware of the intensity of use shown in the video when he visited. So, I do not consider this calls into question the Council’s decision.
  4. Mrs X has also said the outbuilding should be used as a garage in accordance with the planning permission and the occupiers had not used it for this purpose. But this does not call into question the Council’s decision. The key issue for the Council was whether the outbuilding was being used for the business. Officer A’s records show the outbuilding was being used for domestic storage, not business use at the time of his visit.
  5. There is evidence of delay in the Council’s investigation. Officer A attempted to visit the property in spring 2018 but could not gain access. There is no evidence to show he tried to visit again until a further complaint in summer 2018. This suggests the Council let matters drift and this is fault. But this delay did not cause significant injustice to Mrs X. The Council would not have made a different decision that there was no material change of use at the property if it had made this decision earlier.
  6. The Council’s recent decision that there has been a change of use at the property does not call into question the earlier decision. The Council has made this decision due to a change of the use of outbuilding. However, the Council should not delay in deciding what action it should take.
  7. The Council delayed in responding to Mrs X’s complaint at stage one of the complaints procedure. The Council’s complaints procedure provides it will respond at stage one within 20 working days. The Council took approximately four months to respond. This is fault which will have caused some frustration to Mrs X. The Council apologised for the delay in its stage one response which is an appropriate remedy.

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Final decision

  1. There is no evidence of fault in how the Council reached its decision that a business operating from a residential property does not amount to a change of use. The Council is at fault as it delayed in investigating whether there was a material change of use but this did not caused significant injustice to Mrs X. The Council also delayed in responding to Mrs X’s complaint at stage one of the complaints procedure. It apologised to Mrs X which is an appropriate and proportionate remedy so I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. Mrs X first complained to the Council about the business operating from the property in 2015. I have not investigated how the Council investigated the matter between 2015 and 2017 as it is out of time and there are no good reasons to exercise discretion to consider these matters. It was open to Mrs X to make a complaint to us sooner.

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Investigator's decision on behalf of the Ombudsman

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