Summary: A resident’s association complained the Council failed to properly consider their enforcement reports and failed to consider key factors when reaching a decision not to take enforcement action in respect of a site that is an Asset of Community Value (ACV). There was fault by the Council in respect of the earliest reports the group made. The records kept are poor and it took too long to reach a decision. However, we did not find fault in the Council’s decision not to take enforcement action. The Council agreed to apologise and review its record keeping and communication for enforcement reports.

The complaint

1. Mr B complains on behalf of the Residents’ Association that the Council has not done enough to take enforcement action to stop unauthorised letting of a former pub to private tenants and the unauthorised conversion of the pub to residential property.
2. The pub is registered as an Asset of Community Value (ACV). This may be considered by the Council when making planning decisions. Mr B is a member of the community and so may be affected by the potential loss or change of use of the public house.
3. Mr B says the Council has not acted in accordance with its enforcement policy. It has not taken into account the ACV or that the developer submitted a report that showed that the air quality and noise from the carriage way means the windows would need to be permanently closed and an air conditioning system installed.

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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. 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 spoke to Mr X and considered his complaint and the information he provided. I asked the Council for information and considered its response to the complaint.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law and guidance

National Planning Policy Framework (NPPF)

8. Paragraph 58 of the NPPF states that effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

The Council’s Local Enforcement Plan

9. Paragraph 1.8 of the Enforcement Plan states “Planning controls can assist in effectively guiding and managing the pattern of development and change across Bristol and secure the delivery of planning objectives of the Local Plan. The Development Management Service (of which the Planning Enforcement Team is a part) is at the heart of achieving this, and it is crucial that developments are not only authorised, but are also carried out in accordance with approved plans”.
10. Paragraph 5.10 states “Formal planning enforcement action is discretionary and will be taken where the Council consider it to be: essential having considered the provisions of the Local Plan and to any other material planning considerations; and necessary in the public interest (unacceptably affecting public space or the existing use of land and buildings requiring protection in the public interest)’.

Council Development Management Policy DM6: Public Houses

11. “2.6.1 Core Strategy policy BCS12 sets out the general approach to the protection of community facilities including pubs. Core Strategy policy BCS2 seeks the retention of small-scale uses, such as pubs, where they contribute to the diversity and vitality of the city centre. Acknowledging their unique contribution to a community’s social amenity and wellbeing this Development Management policy affords them special protection. The policy considers issues of economic viability, existing pub provision and architectural character.
12. Proposals involving the loss of established public houses will not be permitted unless it is demonstrated that:

i. The public house is no longer economically viable; or

ii. A diverse range of public house provision exists within the locality.

13. Where development is permitted any extensions or alterations should not harm the identity or architectural character of the public house.”

National Community Right to Bid (Non-Statutory) Guidance

14. The Localism Act introduced the concept of Assets of Community Value (ACV). A building or area of land can be nominated as an ACV if its main use furthers the social wellbeing or interest of the local community. If nominated, councils decide whether the building should be registered as an ACV.
15. If a building or area of land is listed as an ACV, it cannot be sold without notifying the council in writing and can only be disposed of in specific circumstances. If the owner of an ACV intends to sell it, the nominating group can ask to be treated as potential bidder. If the group does this, the owner cannot sell it for six months to give the group the chance to develop its own bid. If the group does not bid, the owner then has 12 months to sell the property.
16. Paragraph 2.20 of the guidance states

“The ACV provisions do not restrict what an owner can do with the property so long as it remains in their ownership. This is because it is planning policy that determines permitted uses for particular sites. However, the fact that the site is listed may affect planning decisions – it is open to the Local Planning Authority to decide whether listing as an asset of community value is a material consideration if an application for change of use is submitted, considering all the circumstances of the case.”

What happened

17. Mr B’s local public house was bought by a property development company.
18. On 5 January 2018, Mr B made a complaint to the Council that accommodation at the pub was being let as an HMO without planning permission. It also had no HMO licence.
19. The Council says planning officers visited the site and took photographs on 22 January but officers made no notes at the site visit to show what they found or what their view was.
20. In May 2018 Mr B’s community group made an application to register the pub as an ACV. The application was contested but the Council agreed it should be listed.
21. When considering the ACV application, the Council noted testimony from former customers and staff that accommodation in the pub had only ever been used by staff and not leased commercially. In their submissions to the Council about the ACV, the owner of the public house stated, prior to its closure, “As well as casual drinking, the premises also catered for larger gatherings in an upstairs function room”.
22. The Council’s decision to list the property as an ACV determined “the ground floor flat, the garage and the first floor were both physically and functionally part of the pub”.
23. The Council provided us with evidence its housing team visited the site to consider its use as a HMO in August 2018. They considered the property met the requirements for a licence and they provided some feedback to the planning department.
24. In September 2018 the site owner submitted a planning application to convert the property to residential use.
25. The information provided by the Council indicates, aside from a site visit, no action was taken and no decision was made on the planning enforcement complaint until November 2018 when it was closed. In response to a complaint from Mr X the Council told him the enforcement case was closed because the applicant had submitted the planning application.
26. The Council told us the planning department had established the accommodation (that was ancillary to the use of the building as a pub) was being used as separate residential accommodation. This is a breach of planning control. However, it told us it decided not to take any action at that time because it was only considered temporary. It stated no permanent sub-division of the planning unit had occurred. The Council told us it decided the ACV status of the pub was not relevant as the matter did not affect the commercial part of the building. There is no contemporaneous note or record of this being the Council’s assessment of the situation at that time or to show what factors the Council took into account when it closed the file. The Council’s online file confirms the reason the case was closed was “application submitted”.
27. In January 2019 the developer withdrew the planning application for a change of use. On 12 April 2019 Mr B made a formal complaint to the Council. He re‑iterated the developer was letting residential accommodation at the pub without planning permission, and it was also an unlicensed HMO. I understand a local councillor also became involved on behalf of residents and the Council opened a new investigation.
28. The Council visited the site on 25 April and took photographs. No site visit notes were made. However, the Council wrote to Mr X and the site owner on 2 May. The Council explained its view to Mr X. The Council established the site was a single planning unit – a public house. The public house was not operating. As a result, the Council agreed it was arguable the developer should not let the accommodation while the pub was not in use but it stated “given the circumstances of the situation we do not propose any further consideration of this”. It stated the site owner had been told it was imperative he did not create any further residential accommodation without first applying for planning permission. The remainder of pub should only be used in accordance with the existing planning use and there should be no more alterations to the exterior.
29. The Council closed the enforcement case but told the site owner that officers would keep a watching brief. In the meantime the Council’s licensing team issued a HMO licence.
30. Mr X made a formal complaint in May 2019. This was escalated in June 2019. The key questions Mr X raised in his complaint were:
• why a HMO licence was granted by the Council. He noted the council could, but did not have to issue a HMO license. So, while accepting it was not illegal, he questioned why the Council felt a HMO licence should be issued, given the use of the site was a breach of planning control.
• why the investigation into his original planning enforcement report had been closed and how the Council had reached its view that the identified breach of planning control did not warrant formal enforcement action. The case was closed when the Council received a planning application for change the use. Mr X felt the council failed to consider if it was likely that such an application would be approved. He argued, based on planning policy it was not. He noted there were strong arguments why a change of use application would not succeed. He noted points they made about policy DM6 had been accepted when the Council agreed to register the pub as an ACV.
31. The Council’s responses at Stage One and Stage Two of its complaints process set out its view. It stated its legal department had confirmed that it could legally issue a HMO licence despite the development having no planning consent. It did not explain its decision further.
32. The Council explained it was its policy to close an enforcement report in the event that a developer submitted a planning application which sought to address the breach. It stated the decision to record the breach but take no action was consistent with its policies.
33. The Council explained its reasoning. The Council stated the use of the residential element of the pub, was a breach because its occupation was not ancillary to the use as a pub. However, as the current use was still residential, this would not have a materially different impact to the area from that caused by its ancillary use. This is why the Council did not consider enforcement action was warranted. The Council stated enforcement action was discretionary and they did not consider in this case harm was being caused that justified it.
34. The Council’s response to Mr X noted that it had opened a further planning enforcement investigation in September 2019. This was to consider works to the ground floor and garden area. However, it had also carried out a further inspection of the residential accommodation. The Council stated as a result of that it had set up a separate investigation to consider the subdivision of the building into separate units (one being the residential accommodation and the other being the public house). The Council considered its response had been reasonable.
35. The Council wrote to local councillors on 25 September to set out the consideration it had given to the enforcement reports from May. Officers stated the owner had confirmed they hoped to re-open a business in the ground floor soon. This may be a bar or restaurant. This would be subject to the usual licensing requirements.
36. Officers stated they told the premises owner if they wished to continue to use the residential units as they were now (separate from the commercial business) they would need to apply for permission to split the property into separate planning units. The Council stated as officers had not identified any breaches they could take action on, their file would be closed. The site would be re-inspected when commercial use recommences.
37. In October 2019 the Council opened a fourth planning enforcement investigation. This was to consider the unauthorised division of the pub into two separate planning units. In August 2020 the Council provided an update to Mr X. The site owner had advised the Council they intended to submit a planning application for the ground floor of the site. However, this had been hampered by the period of national lockdown due to Coronavirus. At the time of our investigation the application was still awaited. The enforcement case remained under consideration, with enforcement action being held in abeyance.

Was there fault by the Council causing an injustice to the residents?

Issuing a licence for a HMO

38. Part of Mr X’s complaint was that the Council should not have issued a HMO licence for a building to allow its residential use when its use was a breach of planning control. This was not fault by the Council. The licensing and planning regimes are distinctly different. If the Licensing team are satisfied that a building meets the licensing requirements they are entitled to issue a licence.
39. The issuing of a licence does not give the building owner any rights to use a building in a way that breaches planning regulations. It solely provides the required licence. So, regardless of the fact that a licence has been issued, any breach of planning control could still result in separate action by the Authority which could prevent the HMO use continuing. A HMO licence does not prevent a council from taking action.
40. So, with this in mind, I have considered how the Council reached its enforcement decisions.

How the Council dealt with the enforcement reports

41. Mr X complains the Council has not done enough to take enforcement action and the Council has not acted in accordance with its enforcement policy.
42. I found there was fault in the way the enforcement investigation was conducted in 2018. The report was made in January 2018. There is evidence a site visit took place in January, but the Council has not provided any evidence to show what planning officers made of the situation at that time. A planning application was submitted in September 2018 for a change of use. This led to the Council closing the enforcement investigation in November. I found the decision to close the file, pending the outcome of the application was action the Council was entitled to take. However, there is no indication what action, if any, the Council took between the site visit in January and the closure in November 2018. The lack of action during 2018 and the failure to keep adequate records showing the consideration given to the report from early 2018 amounts to fault by the Council.
43. When the second report was considered in early 2019, correspondence with Mr X and the site owner, and its responses to Mr X’s complaint shows the view officers took about the enforcement issues he raised. The Council was clear that this was a breach of planning control. This is because the accommodation only had planning permission for ancillary residential use in connection with the use as a pub, not use independently of the pub. However, it decided any impact was not so harmful as to warrant enforcement action because the use was still residential.
44. I note that the ground floor elements of the building that relate to the commercial public house; and the function room upstairs remain undeveloped. Only the residential elements of the building were being used.
45. Enforcement action is discretionary and Councils can take a range of measures to deal with planning breaches. This includes reaching decisions not to take any action. So, in principle, the Council was entitled to reach a decision that the harm was not such that it justified action.
46. I have gone on to consider if the Council properly considered other relevant factors in this case when dealing with the enforcement issues.

Consideration of the ACV Status /Retrospective Planning Application

47. I understand Mr X’s argument that not taking enforcement action against the HMO use of the property could arguably have an impact on its value. This in turn may impact the community’s ability to purchase the pub. Although there is a HMO licence, it is clear that the property is not currently being used in accordance with its planning permission. So, it could not be sold as a property which has full consent to operate as a residential HMO. It does not have planning permission for this use. The Council’s position is only that it is not proportionate to take formal enforcement action as things stand. The value of the property would not be a consideration for the Council.
48. Mr X makes the point that the Council should consider whether planning permission is likely to be granted when considering whether to allow a retrospective application to be submitted. He argues the change of use of the public house would go against Council Policy DM6 and would be unlikely to be granted.
49. I recognise that Policy DM6 is relevant here and that changes of use could be refused because of this policy. However, I do not consider it is fault for the Council to allow an application to be submitted for consideration. Policy DM6 does aim for the retention of small-scale uses, such as pubs. However, it allows for exceptions to be considered. Any planning application would allow the applicant and objectors to comment and their arguments would need to be considered as part of the planning process. I do not consider the likely outcome is so clear as to dictate that the Council should decline to consider an application at all. It is common for retrospective applications to be considered before a council takes formal enforcement action. So, I do not consider it was inappropriate of the council to defer taking formal enforcement action to allow an application to be submitted.
50. That said, the existence of an ACV is a material planning consideration. I found there was a lack of evidence to show how the Council had considered what impact this had on the issues it was considering. Overall, I do not consider any lack of explanation about this point has led to a different outcome. I say this because the Council explained that it considers the current impact of the unauthorised use does not warrant action as it does not cause significant harm. It is the view taken about harm that drove the decision not to take action. When the Council considers the retrospective application this will determine the acceptability or otherwise of any proposed change of use. The Council should consider the pub’s status as an ACV, and decide what, if any, weight to apply to this as part of its consideration.
51. Once the decision on the retrospective planning application is made, this will inform whether the Council should go on to consider whether enforcement action is justified.

Air Quality issue

52. I note what Mr X says about the proximity of the upstairs of the building to a main road and the air quality issues this causes. However, this is the situation whether the accommodation is used ancillary to the pub, or as the unauthorised HMO accommodation. As the air quality issue is not caused by the unauthorised use that the current owners are making of the building I do not consider it is a key consideration in whether or not to take immediate enforcement action. It is possibly a factor for consideration when the Council decides the planning application for a change of use.

Summary

53. I found no fault with the Council’s decision to issue a HMO licence in this case.
54. There was fault in the way the Council considered the original enforcement reports. It took too long to reach a decision in 2018 and there is no record of what action was being taken or what the council’s view was at that time.
55. However, the injustice from this is limited. I say this because the Council went on to consider further enforcement reports and it decided and explained these. It decided it was not proportionate to take enforcement action as things currently stand. There is an accepted breach of planning control, but the unauthorised use was not found to create sufficient harm to warrant action. I understand Mr X strongly disagrees with this outcome, but it is a decision the Council is entitled to reach. I do not consider there was a failure to follow the council’s enforcement policy.
56. It is important to note that the Council has not permitted a change of use here. It has reached a decision that the present unauthorised use does not warrant planning enforcement action now. The Council has an open planning enforcement file and is seeking a retrospective application from the site owner so the final outcome is yet to be decided.
57. However, the Council should apologise to Mr X for the failure to properly determine the original planning enforcement report. It should also reviews its procedures for ensuring proper records are kept. They should show its actions and the view taken on planning enforcement complaints. This review should also include the need to explain decisions to complainant’s appropriately in a timely way.

Agreed action

58. Within four weeks of my final decision the Council should:
59. Apologise to Mr X’s group for the failure to properly consider their enforcement reports in 2018.
60. Review its procedures to ensure that proper contemporaneous case records are kept for planning enforcement complaints. These should show the actions the council took in response to an enforcement report, what decisions were taken and why. It should also ensure that complainants are updated periodically.

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Final decision

61. There was fault by the Council. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman