City of York Council (19 012 604)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 02 Nov 2020

The Ombudsman's final decision:

Summary: Mr X complains about an unauthorised use of land near his home. While the Council agrees there has been a material change of use that breaches planning control, it decided not to take enforcement action. Enforcement action is discretionary, and the Ombudsman found no fault in how the Council reached its decision not to act against the planning breach reported by Mr X.

The complaint

  1. Mr X says the Council failed to take formal enforcement action against a breach of planning control near his home. Mr X also says he has been denied an opportunity to comment on the unauthorised development, which has a bad effect on his home. Mr X wants the Council to secure a planning application from the developer so its Planning Committee can consider whether to grant the unauthorised development planning permission.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 Mr X’s written complaint and supporting information;
  • talked to Mr X about the complaint;
  • asked for and considered the Council’s comments and supporting information about the complaint;
  • where possible, shared the Council’s comments and supporting information with Mr X; and
  • shared a draft of this statement with Mr X and the Council and considered their comments.

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What I found

Background

Planning permission

  1. Most development needs planning permission from the local council. Development may be building or other works and is also a material change in use of land. Council planning decisions must be in line with their development plan policies unless material planning considerations suggest otherwise. Material planning considerations concern the use and development of land in the public interest, for example, traffic generation and overlooking. Private concerns about, for example, changes to house prices and a developer’s behaviour are not material planning considerations.
  2. Councils may place conditions on planning permissions to control development. The National Planning Policy Framework (NPPF) says conditions should meet ‘the six tests’. This means a condition must be necessary; relevant to planning; relevant to the development; enforceable; precise; and otherwise reasonable. Councils must give reasons for each condition they place on a planning permission. Developers have legal appeal rights to challenge planning conditions.
  3. The NPPF says conditions needing compliance with other regulatory regimes will not meet the ‘necessity’ test and may not meet the ‘relevant to planning test’. The NPPF suggests attaching an informative (an advisory note) to such planning permissions to remind developers about the need for other consents.

Planning enforcement

  1. If development takes place without the necessary planning permission, there will be a breach of planning control. Councils must investigate reported breaches, but they do not have to act on every breach they find. Councils have a discretion to take formal enforcement action.
  2. The NPPF and national planning practice guidance (PPG) says councils “should act proportionately” in responding to reported breaches. If a council decides to respond to a breach, it usually has choices about the steps it could take. To issue a formal enforcement notice, the law says a council must be satisfied this is ‘expedient’ after taking account of its development plan policies and any other material planning considerations.
  3. Councils may respond to a breach by asking (they cannot force) the developer to apply for planning permission for the unauthorised development. Such applications are ‘retrospective’ coming after development has taken place. On receiving a retrospective application, the council must publicise it, so people may comment on the development. The council will then assess the development against local and national planning policy and other relevant planning matters, including peoples’ comments. If the council grants planning permission on a retrospective application, this approves the development.
  4. The Council’s published guidance about planning enforcement says, in assessing possible breaches, it has to balance the rights of developers and the wider public interest. And, in line with Government advice, enforcement action “should be appropriate to the scale and impact of the unauthorised development”. The Council explains this means in each case judging the extent development harms the living conditions of nearby residents and the special qualities of nearby land and buildings. The guidance says the Council will acknowledge reported breaches and rank them as ‘A’, ‘B’ or ‘C’, where ‘A’ has the highest priority. A material change of use appears as an example of a priority ‘C’ case. The guidance says the Council may take no further action where it finds a minor breach that does not cause planning harm to nearby residents. The guidance also says the Council may ask for a retrospective application where a breach “could be made acceptable by amendment or the imposition of conditions”. The guidance says the Council will let the person reporting a breach know when it will take formal action and when and why it closes a case.

Premises licences

  1. Some land uses need other legal consents and approvals besides planning permission. For example, various activities, including the sale of alcohol, need a premises licence. Councils are responsible for deciding applications for premises licences. Licence applications must meet the four licensing objectives: preventing crime and disorder; public safety; preventing public nuisance; and protecting children from harm. Councils must advertise applications so people may comment and object to licence proposals. Normally, councils will arrange a hearing if they receive relevant comments. People may then put their views to local councillors before they decide an application. Councils may place conditions on a licence to address concerns raised by local people. Failure to comply with a licence, including its conditions, is an offence.

What happened

  1. Land and buildings (‘the Site’) near Mr X’s home have planning permission and are subject, in part, to a premises licence. The Site planning permissions allow retail use and a secondary or minor use (‘the Activity’) that can take place both indoors and outside. A condition on one planning permission restricted the hours during which the Activity could take place outdoors. Another planning condition controlled the extent of the Activity outdoors. The Council’s assessment of the development had found serving alcohol outdoors when the Activity took place would have “an undue effect on residential amenity”. The assessment also said licensing laws controlled the service of alcohol under premises licences. The premises licence linked to the Activity included a condition restricting licenced activities to indoors.
  2. A few years later the business on the Site closed. The Council then received an application for a new premises licence for the Site, including outdoors. Mr X objected to the application. Mr X’s objections included information about the earlier planning assessment that serving alcohol outdoors would have “an undue effect on residential amenity” (see paragraph 13). Mr X also reported a proposed breach of planning control to the Council. Mr X said the application for a premises licence showed only the Activity would take place on the Site and this needed planning permission. The Council confirmed receipt of Mr X’s report and opened an enforcement case.
  3. The next month, a Council enforcement officer considered Mr X’s report and found the proposed use would include a sales counter. The officer considered this meant the proposed use would be in line with the Site mixed use planning permissions. However, the enforcement case remained open so the Council could check the Site once the business opened to the public.
  4. Later that same month, the Council held a hearing into the licence application, which Mr X attended. Mr X spoke at the hearing. He says objectors told councillors about the Council’s planning view that alcohol outdoors would unduly affect residents’ living conditions. The Council issued a premises licence for the Site. The licence allowed alcohol consumption outdoors but imposed conditions to control the hours and extent to which this could take place.
  5. About a month later, a Council enforcement officer visited the Site, but the business was not yet open. The enforcement officer made another visit seven weeks later. The officer found the business open and had a sales counter. The officer recommended closing the enforcement case.
  6. Six weeks later, Mr X chased the Council for information about its enforcement investigation. The Council replied apologising for the delay and saying it was still investigating but currently considered the Site remained ‘mixed use’. Later, a senior planning officer visited the Site.
  7. Two months later and with Mr X again chasing for a reply, the Council told him about its planning enforcement decision. The Council said only the Activity was taking place throughout the Site. This was a material change of use and a breach of planning control. The Council said the developer had not responded to its invitation to make a retrospective planning application and it could not force the developer to respond. The Council said, after considering relevant policies and planning issues, if the developer had applied, it would have granted permission for the Activity on the Site. The Council pointed to the Activity already having planning permission on part of the Site. The Council also said it did not consider the Activity caused “serious demonstrable harm”. The Council told Mr X it was not therefore ‘expedient’ to take enforcement action and it had closed its enforcement case.
  8. Later, Mr X complained to the Council. Mr X said the Council should act on the planning change of use and at least get a retrospective application. Mr X said a failure to do so denied him and other local people their right to comment on or object to the development. Mr X said noise from the Activity, which took place several hours a day, badly affected his quality of life. Mr X also pointed out the Council had, when dealing with previous applications, identified such likely negative impacts on nearby homes (see paragraph 13).
  9. In summary, the Council’s response was it had carried out a comprehensive enforcement investigation and found a breach of planning control. It had assessed the breach, considering all material considerations. It found the Activity complied with planning policies and part of the Site had planning permission for the Activity. It did not condone breaches of planning control. However, its balanced planning judgement was it would grant planning permission for the Activity on the Site if it received an application. The NPPF said enforcement action should be proportionate. As it considered the Activity acceptable on its planning merits, it was not appropriate to take enforcement action solely to provoke a retrospective planning application. The Council recognised Mr X’s lost opportunity to comment on such an application. And yet, it said that was not a planning consideration it could properly take into account in deciding whether to take enforcement action. The Council ended saying its enforcement decision was correct.

Mr X’s complaint to the Ombudsman

  1. Mr X said the Council was seeking to defend the indefensible. It agreed there was a significant change on the Site yet bizarrely allowed the Activity to continue while ‘not condoning’ breaches of planning control. Mr X also said the Council’s complaint responses had not addressed his specific concern about its licensing decision. It had not made its planning views known to its Licensing Committee. And, in issuing the new licence, it had allowed alcohol outdoors, which its Planning Committee said would unduly affect residents’ living conditions.
  2. Mr X explained he had no objection to the developer’s business but sought a balance between its needs and those of residents. However, the Council had ignored planning procedures and denied him an opportunity to comment on the impact of the Activity. This meant the Council had not ensured the effective consideration and balancing of both business and residents’ interests. Mr X found this frustrating as the Council had, in granting an earlier planning permission, accepted alcohol outdoors would have a negative impact on residents. It was difficult to see how the Council could grant planning permission for the Activity now the licence allowed alcohol outdoors. But its decision to take no action meant there were no suitable control measures to reduce the impact of the Activity. And not taking enforcement action, having issued the licence, meant it was knowingly allowing unauthorised development that badly affected nearby residents.
  3. Mr X says serving alcohol encourages people to stay longer, gather in larger groups and then often to become loud and rowdy. Mr X said the Council could resolve his complaint by granting planning permission preventing the service and consumption of alcohol outdoors on the Site. Mr X also suggested a planning condition to control music on the Site and minor changes to conditions on the earlier planning permissions.

The Council’s response to the Ombudsman

  1. In responding to the Ombudsman, the Council repeated it had investigated Mr X’s concerns, visiting the Site, and assessing the Activity. The Council further explained how the Activity on the Site complied with relevant planning policies, which addressed the impact of development on residents’ living conditions. The Site was in a predominately commercial area where some noise was to be expected. Other nearby businesses had planning permission for the same or similar development as the Activity. The Council said it was not aware of serious allegations about late night noise disturbance on the Site during its enforcement investigation. And, it did not consider, once the business opened, the Activity caused unacceptable harm to nearby residents. The Council said it was satisfied the Activity on the Site was acceptable on its planning merits and, on an application, would gain planning permission. But it could not force the developer to make a retrospective planning application. And, in line with Government guidance, it was not appropriate or proportionate to take enforcement action simply to try to compel the developer to make such an application.
  2. The Council responded to Mr X’s concerns about residents’ lacking protection without planning conditions controlling the Activity on the Site. The Council pointed to the grant of planning permission for mixed use of the Site that included the Activity. While the Activity was ancillary to the main retail use of the Site, the permission included no conditions limiting its extent. The Council said the lack of such conditions meant extending the Activity would not be unacceptable on planning grounds. So, to impose a condition to limit the Activity within the Site on any retrospective application would fail the ‘reasonableness’ test.
  3. The Council also said planning conditions should not seek to control matters regulated by other legal regimes. And, to condition the service of alcohol outdoors on the Site would fail the test of ‘necessity’. The Council also pointed to licensing legislation that restricted licencing controls over live and recorded music on some properties catering for fewer than 500 people. The Council believed it could enforce the most recent planning permission for the Site if the business did not comply with it and enforcement action was ‘expedient’. However, the Council said it was not aware of issues on the Site needing a planning enforcement response.
  4. The Council pointed to its public protection powers, which it could use to address any reports of nuisance and antisocial behaviour on the Site. The Council said since the developer started the Activity on the Site it had received five reports of noise disturbance and licence breaches from Mr X. It investigated these reports, visiting the Site and writing to the developer, but found no evidence of statutory nuisance or breaches of licence conditions to justify a review of the licence. The Council says it told Mr X of its findings and of his right to ask for a review of the licence.
  5. The Council also responded to Mr X’s concern that it had ignored its planning view about serving alcohol outdoors having an “undue effect” on residents. It pointed to its earlier planning report saying licensing laws would continue to manage the service of alcohol on the Site. It routinely checked the planning status of land before deciding licence applications. And, as local planning authority, it was a consultee on licence applications and so could make comments relevant to licensing objectives. However, planning and licensing were two separate legal procedures. This meant it did not have to take account of planning matters when acting as licensing authority deciding licence applications.

Consideration

Introduction

  1. There is no dispute the Site does not have the necessary planning permission for the Activity and so a breach of planning control exists. The key difference between Mr X and the Council concerns the response to that breach. Mr X wants the Council to act and, at least, secure a retrospective planning application so he and other residents may comment on the Activity. The Council, having investigated the breach, has decided to take no further action. It is not for me to say whether the Council’s decision is ‘right or wrong’ or, ‘good or bad’. My role is to consider whether the Council has acted with fault in reaching its decision. Without evidence of fault, I cannot question the decision whatever the strength of Mr X’s differing view. So, is there evidence of fault.

Enforcement investigation duration

  1. I recognise it was about seven months before the Council told Mr X of its enforcement decision. This is a long time. And yet, enforcement investigations often take months and here there could be no breach before the Activity opened to the public. The evidence suggests it was about three months after Mr X reported the proposed breach before the Council’s visits found the Activity was taking place on the Site. As a report about a change of use, Mr X’s report would also have been a ‘priority C’ case (see paragraph 11). I do not find there was undue and avoidable delay in the time taken by the Council to investigate Mr X’s report. The Council’s published enforcement guidance does not say it will keep in touch with those reporting a breach of planning control during an investigation. The Council may wish to review this as it is good practice to update people, however briefly, on progress with enforcement investigations.

The enforcement decision

  1. The Council’s investigation involved officers, including a senior planning officer, visiting the Site once the Activity opened to the public. The Council also considered the Activity on the Site against relevant policies to assess whether it was an acceptable on its planning merits. That assessment recognised the Site had planning permission for a mixed use that included the Activity, although on a much smaller scale. On noise and disturbance, the Council found the Site was in a commercial area where you would expect some noise. And, nearby, similar businesses took place with planning permission. The Council found no significant evidence of noise and disturbance from the Activity on the Site causing demonstrable harm to residents’ living conditions (see also paragraph 28). Having investigated and found the Activity, which breached planning control, was acceptable the Council decided to take no action. It then told Mr X about its enforcement decision.
  2. The Council’s approach and the steps it took are those I would expect of a council responding to an alleged breach of planning control. The Council’s view about harm to residents’ living conditions is not without merit. This is not to say no noise and disturbance exists. Rather, it is a matter of the Council’s professional planning judgement that reports of noise and nuisance are not such to show demonstrable planning harm. The Council’s explanation for finding the Activity on the Site acceptable on its planning merits is sustainable. I therefore find no evidence of fault in how the Council responded to Mr X’s report.

Mr X’s call for a retrospective application

  1. I recognise Mr X finds the Council’s ‘no further action’ decision unacceptable and continues to seek a retrospective planning application. And yet, the Council does not have to take enforcement action against every breach of planning control. It also cannot compel anyone to make a planning application. The Council also points to the inappropriateness of using its enforcement powers just to try to secure a retrospective application for development acceptable on planning grounds. The Council says it could not properly justify such action under planning laws and national guidance. I find merit in the Council’s view and no grounds to consider it acted with fault on this issue.

Mr X’s concerns about planning conditions

  1. I also considered Mr X’s concern that without a planning application, and any resulting permission, residents have no protection from the Activity. The Council has set out why it could not properly use planning conditions to limit the Activity on the Site or prevent alcohol outdoors or control music. I find the Council’s views have merit and are sustainable. The Council also believes it may enforce the most recent planning permission for the Site that concerns the outdoor area of the Site.
  2. The Council also points to other legislation providing a legal route to protect residents from disturbance at the Site (see also paragraph 28). The developer must comply with the licence for the Site. The licence has conditions to control the hours the Activity may take place outdoors and that limit its extent (see paragraph 16). These conditions are like those on the most recent planning permission for the Activity outdoors on the Site, which the Council believes is enforceable (see paragraph 35).
  3. The Council has investigated Mr X’s reports of noise and breaches of licence conditions on the Site. It found no statutory nuisance or evidence of breaches to merit a review of the licence. I find, despite there being no planning permission, the Council has powers to protect residents should unacceptable harm arise from use of the Site. Overall, I find no evidence of fault in how the Council approached and considered this issue in reaching its enforcement decision.

Planning and Licensing

  1. Mr X’s complaint also refers to the Council’s licensing decision. I have not investigated that decision as the law provides appeal rights for people dissatisfied with licensing decisions. It was open to Mr X to have used those rights when the Council issued the licence over two years ago. I find no good reason now to investigate a complaint about the issue of the licence. And, more recently, the Council has told Mr X of his legal right to ask for a review of the licence. That possibility remains open for Mr X to consider and, if he finds it appropriate, act on. I have, however, considered what Mr X says about the links between the licence and the Council as local planning authority.
  2. Mr X points to a Council planning report saying serving alcohol outdoors at the Site would have an undue effect on residents’ living conditions. Mr X’s concern is the Council, as local planning authority, did not make this view known to its Licensing Committee. And the premises licence now allows the service and consumption of alcohol outdoors linked to the Activity.
  3. The Council produced no evidence to show contact between planning and licensing about the planning status of the Site. I have therefore seen no evidence the Council followed its stated procedure in this case (see paragraph 29). Similarly, I have seen no evidence the Council, as local planning authority, commented on the licensing application. The Council points out such comments should link to the licensing objectives (see paragraph 12). I have considered those objectives. I see no good reason the Council could not, as local planning authority, have commented about the impact on residents of serving alcohol outdoors on the Site.
  4. And yet, the Council correctly points out that planning and licensing are separate legal procedures. The Council’s earlier planning report also reflected this separation. That report said licensing laws controlled and would continue to control the sale and consumption of alcohol on the Site. It was for the Council, as licensing authority, to decide if serving alcohol outdoors could take place. The Council, as local planning authority, could not order the licensing authority to refuse to licence that activity.
  5. The Council’s report to its Licensing Committee shows it was aware of residents’ concerns about alcohol outdoors. The licence also included conditions to control alcohol outdoors. On balance, I do not find any comments from the Council, as local planning authority, are likely to have substantively added to the information available to the Licensing Committee on this issue. I therefore find no grounds to suggest the Licensing Committee would have reached a different decision.

Conclusion

  1. I have no grounds on which to properly base a finding of fault in how the Council responded to Mr X’s report of a breach of planning control.

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Final decision

  1. I completed my investigation finding no fault in how the Council reached its decision not to take enforcement action against development near Mr X’s home.

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Investigator's decision on behalf of the Ombudsman

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