Summary: Miss B complains the Council did not take enforcement action against breaches of planning consent by a neighbouring café. Miss B says activity in and outside the café at unsociable hours impacts on her enjoyment of her property. The Ombudsman finds fault in how the Council investigated Miss B’s concerns.

The complaint

1. The complainant, who I refer to as Miss B, complains the Council did not properly investigate her complaints about breaches of planning consent at a café. Miss B lives next to the café and complains of constant noise from outdoor seating areas and scraping of tables early in the morning. She is also concerned the café is operating a takeaway business, which often leads to queues at the front of the premises. Miss B says the café does not have permission for outdoor seating or takeaway. Miss B says the Council will not act to stop the breaches.
2. Miss B says the Council previously rejected planning applications for a change of use and placed conditions against outdoor seating. She said it did so to protect against nuisance to neighbours. Miss B complains the Council then granted permission without properly explaining why.

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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 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)
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 considered the information Miss 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 Miss B and the Council for their comments. I considered their comments and amended my draft decision then gave Miss B and the Council another opportunity to comment.

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What I found

Legislation and Guidance

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
8. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (“the Act”) as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
9. Section 171B of the Act sets out the time limits within which councils can take enforcement action. A development becomes immune from enforcement if no action is taken:
• Within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out without planning permission of operational development (building, engineering, mining or other operations) in, on, over or under land;
• Within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse;
• Within ten years, for any other breach of planning control.
10. Various case law has commented on whether the breach must be continuous throughout the relevant period and in what circumstances a breach is continuous.
11. The Town and Country Planning (Use Classes) Order 1987 (as amended) puts uses of land and buildings into various categories known as 'Use Classes'. Commercial use classes include:
• A1 – Shops/sandwich bars etc
• A3 – Restaurants and cafés
• A5 – Hot food takeaways

Background

12. In 1991 the owner of the building in which the café is now located applied for planning permission to change its use from A1 to an A3 café. The Council did not grant permission as it considered this would cause noise and disturbance for residents. However, later in 1991 the owner applied again, and the Council approved the application on the basis the change of use was not a development and did not need planning permission.
13. In 1993 the Council then granted planning permission for continued use of the premises as a café. It included a condition that said the café could not use the rear garden, to avoid nuisance from noise. The café has continued to operate since that time.
14. In early 2018 Miss B moved into a flat next door to the café. When she viewed the flat it was winter, and the rear garden of the café was not in use. However, after moving in Miss B found that she was systematically woken as early as 05:00, as staff would open the patio doors and she could hear them cooking, cleaning and dragging metal chairs around.
15. Miss B says that, outside of winter, the café has seating in the rear garden and on a first-floor balcony. She says the garden and balcony are in use from 07:00 to 18:00 every day. She says there is noise from people in the garden. Also from the grinding of beans, scratching of metal and other noises associated with the business, coming through the open back doors. Miss B says the noise is constant and means she cannot use her garden of have her windows open until after 18:00.
16. Miss B complained to the Council in June 2018. An officer from the Council met with the manager of the café, who said the garden had been used continuously for 25 years. The officer also checked the café on google maps, which showed evidence of tables used in the rear garden eight years back. This is as far back as the satellite image on google maps goes. The officer found it was reasonable to conclude the use went back further, most likely more than 10 years.
17. The officer could find no record of any previous complaints to the Council. He informed Miss B the use breached a condition of the planning permission, but it was now immune from enforcement action as it had continued for more than 10 years. The officer instead asked the manager to explore using rubber feet on the chairs and placing a sign asking customers to be considerate of neighbours. However, he told Miss B he could not enforce this.
18. Miss B raised further concerns the café was operating as a takeaway, leading to queues in the street. She also questioned whether the café had planning permission to use tables and chairs outside at the front. She also said the use was not continuous for more than 10 years as the café did not use the garden or balcony for five to six months over winter.
19. The officer said that any takeaway was for coffees and other items, mainly during commuting hours. He said this was ancillary to the primary business of the seated café. He said he could not take enforcement action about the chairs at the front as there was no condition restricting this. However, he checked with the street licencing team, who confirmed the café had a licence to place chairs and tables in the street. The Council did not respond to Miss B’s point about whether not using the garden tables for up to half the year, meant the use was not continuous.
20. Miss B disagreed with the Council’s decision. She raised concerns about the way it had granted planning permission. She also said the Council had visited a neighbouring property for another planning application and should have noticed the use of the café rear garden and taken enforcement action.

Findings

21. In investigating this complaint, I have looked through the relevant planning applications and permissions dating back to 1991. However, I have not looked into whether there was any fault in how the Council granted planning permission. The applications took place nearly thirty years ago so I could not meaningfully investigate this point. Instead I have investigated how the Council considered whether to take enforcement action following Miss B’s more recent complaint.
22. The Council is correct to say that it cannot take enforcement action if something has continued for more than 10 years. The Council investigated whether this was the case by speaking to the owner of the café and checking on google maps. I appreciate that google maps cannot give definitive proof as it did not show satellite images more than 10 years before Miss B complained. However, it did go back eight years so is likely to support what the café owner told the Council.
23. There is unlikely to be any definitive, photographic or documentary proof showing whether the rear garden was in use more than 10 years before. Officers can use their judgement to decide, on balance, whether a breach of conditions has been ongoing for more than 10 years. I therefore do not find fault in that respect. However, I find fault in that the Council did not consider Miss B’s point about continuous use.
24. Miss B raised the point in her Stage 1 complaint. There is no evidence in the correspondence or the Council's report that it considered this point. It is a relevant point as case law has made findings about whether a use must be continuous to achieve immunity, and what amounts to continuous use.
25. All cases are different and, provided the Council has properly considered the relevant facts and law, it is not my place to question its decision. Only a court could do so. However, the lack of evidence the Council considered this point is fault and I recommend the Council review its decision based on this.
26. In respect of the table and chairs to the front, I accept that as there is no planning condition restricting such activity, it is not something the Council can challenge from a planning enforcement perspective. The officer checked whether the café had a licence to use chairs in the street, which was the only alternative enforcement issue that might arise.
27. I also do not find fault in the Council’s decision not to stop takeaway items being sold in the café. Cafés regularly have a counter that customers can take away coffees and sandwiches from. This is generally considered ancillary to the café itself. The level of custom that part of the business receives would not necessarily mean it is not ancillary, when the primary purpose of the business is a café with chairs and tables to allow customers to eat in.
28. I also note that sandwich bars, where the items are more predominantly taken away, is part of the A1 use class, which the building originally was. Miss B is suggesting the takeaway part of the business means there has been a change of use to A5. However, A5 generally relates to specific hot food takeaways. The reason it has a separate class is because of the particular nuisance those takeaways might bring, such as increased traffic, deliveries and late-night opening.
29. The officer considered Miss B’s concern about the takeaway element of the business, having visited the premises twice, and set out why he did not consider this amounted to a change of use. I can see no fault in how the officer considered this point and, again, cannot question the merits of his decision.
30. I understand council officers may have visited a neighbouring property for another application at some point. However, I would not expect those officers to have checked the planning conditions of properties next door or to have known the use of the garden was prevented by a condition put in place several years before. The Council will normally only investigate a breach if someone specifically brings it to their attention.
31. The other option available to Miss B is to complain to the Council about statutory nuisance. I understand Miss B has already done so and had not received an outcome at the time we spoke. If Miss B is concerned about how the Council’s environmental health response, it is open to her to make a further complaint.

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Agreed actions

32. I recommend that within a month of this decision the Council:
• Apologise to Miss B for not considering the concern she raised in her complaint about continuous use
• Review its decision on whether to take enforcement action and address whether the breach of condition is immune, taking into account Miss B’s comments about the garden not being used for several months of the year. The Council should provide evidence it has, if necessary, carried out further investigation, and that it has considered any relevant legislation, guidance or case law in making its decision.

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Final decision

33. The Council is at fault in how it investigated Miss B’s concerns about breach of planning consent. It has agreed to apologise to Miss B and review its decision.

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Investigator's decision on behalf of the Ombudsman