Summary: Mr B complains the Council has not taken planning enforcement action against a nearby dental practice. We do not find fault in how the Council has considered the case for enforcement. While we find the Council has not always provided good customer service to Mr B, we also consider there is insufficient evidence to justify a finding of fault causing him an injustice.

The complaint

1. I have called the complainant ‘Mr B’. He lives in a residential area within the Borough. His complaint concerns a nearby dental practice. Staff and users of the practice park along the road where he lives. Mr B says this causes problems for him and other residents. It limits their parking and creates a hazard for road users. Mr B says the practice runs outside the terms of its planning permission and it is this which creates the demand for parking. He says despite this, the Council has refused to take planning enforcement action against the surgery.
2. Mr B also complains the Council has responded poorly to his enquiries and complaints about this matter. It has delayed replies and he is unhappy planning officers would not meet with him in response to his contacts.
3. Mr B says he and other residents experience continuing problems associated with problem parking which the Council could prevent. He also has experienced unnecessary time and trouble in pursuing his complaint.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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:

• 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)

6. 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)

Back to top

How I considered this complaint

7. Before issuing this decision I considered:

• Mr B’s written complaint to the Ombudsman and any supporting information he provided including that gathered in a telephone conversation with him.
• Information provided by the Council in response to written enquiries.
• Relevant government guidance on planning enforcement and relevant Council policies and procedures including its corporate complaint procedure.
• Comments made by Mr B on a draft decision statement where I set out my thinking about his complaint. The Council also had chance to comment on this but did not do so.

Back to top

What I found

Background and key facts

8. Mr B lives on a residential road in the Borough, around 140 metres from the dental practice at the centre of this complaint.
9. The practice has worked from the site since 2009. Over time use of the site has increased and this has led to dissatisfaction from residents of Mr B’s street affected by on-street parking associated with this use. When Mr B first raised this matter with the Council in March 2018 he presented a petition in support, signed by 18 other households.
10. The practice first obtained planning consent in July 2007. The Council gave permission subject to various planning conditions limiting the number of surgery rooms. It said the practice could not expand its operations without planning permission. The Council gave its reason for imposing conditions as being “to ensure the level of activity associated with the use of the site as a dental surgery does not adversely impact on the amenity of adjoining residents”.
11. The Council refused two other planning applications presented by the practice. One of these was non-specific in setting out the detail of the proposed practice. The other asked specifically for more surgery rooms within the practice than that granted in July 2007. The dental practice appealed both refusals to the Government Planning Inspectorate.
12. In December 2007 the Planning Inspectorate issued a decision on both appeals. It upheld the Council’s refusal of the scheme which proposed more surgery rooms. But it allowed the appeal for the non-specific scheme subject to certain conditions including that permission accord with approved drawings. Those drawings included an internal layout drawing showing a limited number of surgeries. They also included a plan showing car parking spaces in front of the building with a dropped kerb to help enable that. The Inspector’s decision did not impose any conditions limiting the number of surgery rooms. Although the narrative of the decision said the reason for upholding the Council’s refusal of the scheme with more surgery rooms was because of the impact of extra traffic and parking. The Inspector expressly set out the negative impact this could have on the road where Mr B lives.
13. When Mr B asked the Council to investigate his concerns about parking, it asked a planning enforcement officer to investigate. Their investigation took around three months. The officer enquired with the dental practice and had sporadic communication with Mr B during the investigation, in response to Mr B providing information. The investigation concluded the Council could not act against the practice, even though the internal layout of the building now provided for more surgery rooms than in 2009. This was because the Council found the practice operated in accord with the planning permission given by the Inspectorate in December 2007, not that given by the Council previously. Consequently, it said there were no conditions preventing changes to the interior of the building resulting in a greater use which the Council could enforce against.
14. Mr B was unhappy with that response and emailed the Council explaining his dissatisfaction. His email went to a senior planning officer who replied within a few days. Their reply:

• Upheld the view the practice operated under the December 2007 planning permission.
• Explained the Council could not prevent the practice making changes to its internal layout even if these contradicted plans presented in 2007. The reason for this was that Section 55 of the Town and Country Planning Act 1990. This allows for changes to the interior of a building without needing planning permission.
• Explained the Council did not consider the intensified use of the practice since 2009 justified enforcement action. The Officer explained the legal test the Council must apply to decide if intensification alone justifies enforcement action.
• Recognised parking arrangements in front of the practice did not comply with approved plans. But the Council considered it was not in the public interest to take enforcement action. Because the Council considered the practice provided the same number of spaces although not configured as in the original plans.

15. The senior officer concluded by signposting Mr B to the Council’s corporate complaint procedure if unhappy with their reply.
16. The Council did not register Mr B making a complaint until May 2019, which it responded to in late July 2019. But between it has recorded:

• An exchange of correspondence with Mr B’s MP around August 2018, whom Mr B approached for help. In their reply to Mr B’s MP the Council’s senior planning officer also provided photographs showing they had inspected parking along Mr B’s road before replying to him.
• Mr B sending emails to its Enforcement Officer and senior Planning Officer in November 2018 and January 2019 drawing attention to how cars parked outside the surgery. Mr B said these showed fewer cars park on its forecourt than the Council understood.
• Contacts between Mr B and a different senior officer between January and April 2019. The officer repeatedly said they could not add to the replies given previously by the planning service. They also signposted Mr B to the South Essex parking partnership. This is a partnership organisation made up of local District and Borough councils as well as Essex County Council. It considers requests for greater parking restrictions, such as local permit schemes.

17. In its final response to Mr B’s complaint in July 2019 the Council upheld the planning service response to his contacts. It said again it could not take enforcement action against the practice. The Council acknowledged not meeting with Mr B previously (he did meet with its complaints officer) but defended the replies he had received to his earlier correspondence. It recognised it did not reply to his complaint within 25 days as set out in its corporate complaint policy and apologised for that. It again encouraged Mr B to consider contacting the South Essex parking partnership to pursue his concerns about on-street parking.
18. As part of my investigation I have also considered correspondence Mr B has exchanged with the Planning Inspectorate. It has defended the decision reached on appeal in December 2007 and said it cannot comment on enforcement matters which are for the Council to address.
19. In reply to my enquiries the Council has further defended its replies to Mr B’s contacts. It has clarified that it does not consider it in the public interest to take enforcement action in respect of parking spaces on the forecourt of the surgery. This is after taking account there is a dropped kerb along the frontage, although not the extent shown on the plans. Also, after noting a telegraph pole prevents further extension of the dropped kerb. The Council also considers the practice still provides the same number of spaces as shown on the plans.

My findings

20. I understand the concerns Mr B has about the impact of parking on his road associated with the dental practice. I consider in 2007 the Council probably foresaw potential negative impacts of a practice in this residential location, including a potential impact on parking for residents. I consider this explains why the Council imposed planning conditions on the number of surgery rooms within the practice in its July 2007 decision. It also explains why it refused the planning application which expressly asked for more surgery rooms.
21. If the practice operated under the July 2007 planning permission then any increase in surgery rooms created through internal changes to the building would be in breach of that planning permission. But there is nothing to show the practice operates under the July 2007 planning permission. Instead, it can operate under the December 2007 planning permission which imposed no similar conditions and which the Planning Inspectorate took, not the Council. Consequently, I find the Council is not at fault for saying it cannot take enforcement action based on the conditions attached to the July 2007 planning permission.
22. I recognise the December 2007 planning permission still imposed conditions referring to approved plans. These included drawings of the internal layout of the practice. But as the Council has explained to Mr B it is also the case that any occupier can make internal changes to a building without needing planning consent, unless planning conditions prevent this. I recognise the commentary of the Inspector’s decision implied they also saw negative impacts for residents through an expansion of surgeries within the practice. But their decision did not restrict future internal changes to the practice building. The Council cannot imply the existence of such a planning condition which was not made. The Council is not at fault therefore for saying it cannot take enforcement action on this ground either.
23. The Council has also further considered if it could take enforcement action based on an intensification of the use of the building. I find it has properly explained to Mr B the legal test for when authorities can justify enforcement because of intensification. It has explained that while it accepts the use has intensified, it does not consider the test met here. I consider this a view it has reasonably reached on the facts. While Mr B may disagree, that is not reason for me to find fault with the Council’s judgment.
24. I consider the only scope the Council has for enforcement is therefore in consideration of the limited issue of parking on the forecourt of the surgery. It accepts the surgery is not complying strictly with the December 2007 approved drawing. But it has explained why it considers any departures from the drawing minimal and so not justifying enforcement action. I consider this too is a reasonable exercise of its judgment as the Council has provided logical reasons for its position. I find the Council’s approach follows Government guidance which does not expect planning authorities to take enforcement action if there is no public interest in doing so.
25. So while I am not without sympathy for Mr B’s concerns I agree with the Council that it cannot take planning enforcement action to address these. The way forward would be instead to consider if parking restrictions on Mr B’s street might be appropriate. The Council has advised Mr B how he could make a request for consideration of these. I could not ask it to do more.
26. I also find the Council provided a mostly satisfactory explanation for its position on these matters to Mr B, before we began this investigation. In particular, I note its senior planning officer giving a detailed explanation of the Council’s position in June 2018. It is unfortunate it took over 12 months for Mr B’s complaint about that position to then reach this office. But I find this is not solely because of Council delay. The senior planning officer gave Mr B details of the Council complaint procedure in June 2018. It was Mr B’s choice not to make a complaint straight away but to pursue his concerns through other correspondence instead, including via his MP and another senior officer.
27. However, this is not to say the Council might not learn some useful lessons from its handling of Mr B’s contacts. I have concerns that it:

• Did not keep in more regular contact with Mr B during its enforcement investigation.
• Failed to respond to his contacts direct with officers between November 2018 and January 2019. Even if those officers felt there was nothing they could add to earlier responses, they should have explained that to Mr B and referred him again to its complaint procedure.
• Did not signpost Mr B back to its complaint procedure during his extended communications with a senior officer in the early months of 2019.
• Delayed in replying to Mr B’s complaint registered at Stage 2 of its corporate complaint procedure in May 2019.

28. However, I do not consider these concerns justify a finding of fault causing an injustice to Mr B. This is both for the reason given in paragraph 26 and after noting the replies Mr B received from its senior officer and in his reply to his complaint were overall comprehensive and clearly intended to be helpful. He also received an apology for the Council’s delay in its complaint handling.

Back to top

Final decision

29. For reasons explained above I do not uphold this complaint. I find no or insufficient evidence to justify a finding of fault against the Council causing an injustice to Mr B. I have therefore completed my investigation satisfied with the Council’s actions.

Back to top

Investigator's decision on behalf of the Ombudsman