Summary: Mr X complained the Council failed to take enforcement action against his neighbour, who he alleges has started a business in a garage behind his home. The Council has investigated his allegations but found no evidence of a change of use. There was no fault in the way the Council carried out its enforcement investigation.

The complaint

1. Mr X complained the Council failed to take enforcement action against his neighbour, who he alleges has converted a garage to use for commercial purposes.
2. Mr X says the use of garage and visitors to it causes harm to his amenities.

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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. 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

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and discussed the complaint with a planning enforcement officer.
6. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning permission is generally required if there has been a material change of use of land or buildings. Whether a change of use is material is a question of fact and degree and a matter for the Council to decide.
9. Even if a change of use has occurred, there may be permitted development rights that allow the use without having to make a planning application. Permitted development rights are set out in regulations. The regulations allow for the change of use of buildings associated with dwellings to be used for incidental purposes.
10. 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.
11. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
12. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.

What happened

13. Behind Mr X’s home is a courtyard that serves several garages. Mr X noticed that a neighbour, who owns the garage opposite the rear of his home, had converted the garage and was using it for commercial purposes.
14. He reported this to the Council’s planning enforcement officers. A planning enforcement officer told me that:
• the Council visited the site and found that works had taken place;
• there was no evidence to show a commercial use was taking place;
• there was no evidence to show significant harm to Mr X, as he could use permitted development rights to build a fence or plant a hedge to protect his privacy;
• the Council decided to write to the owner of the garage and ask how the garage was being used and to continue visits to check for unlawful use.
15. The planning enforcement officer says that the owner wrote back to say the garage was being used to practice a work-related skill and not for a commercial purpose.
16. The planning officer provided dates for several more visits, where no evidence of a commercial use was found. The officer explained the file was still open and if the situation changed or Mr X provided more evidence, they would consider the evidence. However, the officer cautioned that even if the garage was used for commercial purposes, this did not necessarily mean there would be a breach of planning control. This is because a decision would need to be made whether the use was incidental to the main residential use of the land. The Council would also need evidence to show that any unlawful use caused significant harm to the public, before it could justify formal enforcement action.

My findings

17. We are not a planning appeal body. Our role is to review the process by which planning decisions are made.
18. In this case, the Council is aware of Mr X’s concerns and it has investigated them. So far, it has not found evidence to persuade it there is a breach of planning control, but its file is still open, and that situation may change.
19. The Council has followed the decision-making process we would expect and so I find no fault in the way it has acted.

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Final decision

20. I completed my investigation as there was no fault in the way the Council acted.

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Investigator's decision on behalf of the Ombudsman