Summary: Mr X complains the Council was at fault in the way it dealt with his concerns about breaches of planning conditions at a café near to his home. We have found no evidence of fault in the way the Council considered these matters so have completed our investigation.

The complaint

1. The complaint whom I shall refer to as Mr X complains the Council failed to deal with his complaints about breaches of planning conditions at a café which operates directly below his home. Mr X says he objected to the planning application in 2016 and there have been breaches of the conditions since then. Mr X says the situation has worsened since 2018. Mr X says the breaches prevent the peaceful enjoyment of their home and causes distress to him and his family.

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What I have investigated

2. I have investigated Mr X’s complaints about possible breaches of planning control to the Council since 2020. The final section of this statement contains my reasons for not investigating Mr X’s concerns about any breaches of planning control before 2020.

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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 have read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
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

Planning enforcement

8. 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.
9. Councils have a range of planning enforcement options available to them, including Planning Enforcement Notices. The Council uses this where there is evidence of a breach, identifies it and requires action to remedy it.
10. 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.
11. Government guidance indicates that formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.

The Council’s planning enforcement policy

12. The Council has a planning enforcement plan for any enforcement action. It says the primary objective is to investigate alleged breaches of planning control. It will action proportionately and take action where appropriate and ‘expedient’, meaning it is the right thing to do.
13. Breaches of planning permission include a failure to comply with the conditions attached to a planning application. The Council allocates a case to an enforcement officer. It will then investigate and try to resolve matters through dialogue and negotiation. The Council will commence formal action when a breach of planning control unacceptably harms local amenities, cannot be resolved through negotiation, and is considered expedient to do so.

Events leading to the complaint

14. Mr X and his family have accommodation in a large house with a rear garden area. The house is divided into residential units with retail units on the ground floor. The Council gave planning permission for one of the retail units to become a café under A3 land use in 2015. The planning permission allowed some internal and external changes to the unit and window replacements. The planning permission only allowed access to the rear garden for maintenance and emergency purposes. It did not allow it to be used by customers of the café.
15. The Council served two breach of condition notices on the café owner in 2016. The first was to ensure it was only used as a café, the second to ensure the owner replaced windows and doors and installed soundproofing. The cafe owner submitted information about the windows, doors and sound proofing and the Council discharged the planning conditions. There are no further reports about the use of the café.
16. The Council received a noise nuisance complaint in 2016 about loud voices in the rear garden. The Council did not investigate as it did not meet its threshold for action. The Council has no further recorded complaints.
17. In June 2020 Mr X complained to the Council the cafe owner was breaching the planning conditions. Mr X referred to live music events held until late at night and the owner building a barbeque area at the front of the café. The Council set up an enforcement case to investigate Mr X’s concerns. Mr X submitted a second complaint listing out his concerns about possible breaches of planning permission at the café. Mr X alleged the breaches included:
• A BBQ/bar built on the front forecourt of the property.
• The owner allowing public access to the garden and using it for live music events, dance classes, public lessons, open-air markets, bar and event space.
• Building a bar at the rear of the property with a large stage and selling alcohol on the premises.
• Using the premises as a full event space building for live music events (including the use of application of sound) and events not coming under A3 café use.
• Failing to close the (prohibited) "cafe" events and the front area on time.
• Cooking food on the premises as a restaurant and causing issues due to lack of ventilation.
• Operating a takeaway service.
• Not replacing the rear windows with timber as instructed and painting a mural on part of the listed building.
18. Mr X asked the Council to stop the uses and the owner allowing public access to the rear garden.
19. A planning enforcement officer wrote to the freeholder and leaseholder of the café advising of new permitted development rights to allow takeaway services from the premises under COVID-19 planning regulations. This allowed cafes and restaurants to provide such a service without needing planning permission. The officer advised how to formally apply for this right. The enforcement officer also referred to the barbeque structure built at the front of the café and a wooden stage built in the rear garden. The officer said the structures were unauthorised, needed removing and the mural painted over.
20. The enforcement officer emailed Mr X to confirm the Council investigated his concerns. The officer explained the café was now running as a takeaway. This was under the new temporary permitted development rights allowed by COVID-19 planning regulations until 23 March 2021. This meant the planning conditions from the 2016 planning permission did not apply while it was a takeaway. However, once it started running as a café again in March 2021 the planning conditions applied again so the Council could act against any breaches then.
21. The officer confirmed he had asked the cafe owner to remove the wooden structures and paint over the mural. The officer noted Mr X’s concerns about the windows but on checking the planning file found the owner replaced the windows in 2016 according to the planning permission.
22. The officer sent a further two letters to the freeholder and leaseholder of the café in June 2020 about removing the structures and painting over the mural as there had been no response. The officer reminded the owner the government planned to lift the COVID-19 measures on cafés being able to open on 4 July 2020. This meant if the owner intended to reopen as a café in July 2020, then the 2016 planning conditions would apply unless the lockdown measures continued. The cafe owner responded they built the front structure to ensure they could safely serve customers and would remove it by October 2020. The owner considered the rear structure and mural were allowed under permitted development rights so would consider applying for them to remain.
23. In responding to the draft decision, the Council advises the government has extended the COVID-19 temporary planning regulations until 23 March 2022.
24. Mr X made further complaints to the Council about the use of a bar at the café and past events held at the site. Mr X alleged the Council told the café owner he submitted the complaints. The enforcement officer emailed Mr X explaining the cafe was running under the new permitted development rights as a takeaway, so the 2016 planning conditions were not in force. The officer said the Council could not take retrospective action against historic breaches of the conditions. And Mr X should have complained to the Council when the breaches were happening. The officer told Mr X the Council was negotiating informally with the cafe owner to resolve the breaches with the wooden structures and mural. The officer said the Council had not told the café owner he had complained.
25. Mr X considered the breach of confidentiality could only have come from the Council and complained the café had been breaching the planning conditions for years by holding live music events in the rear garden. The Council dealt with Mr X’s complaints through its complaint procedure. It explained again the café could run as a takeaway until March 2021 under temporary regulations. The Council confirmed it was negotiating with the owner about removing the unauthorised wooden structures or applying to keep them.
26. The Council explained the 2016 planning conditions restricted the café from hosting live events and allowing customers access to the rear garden. But while the café was operating as a takeaway under the temporary planning regulations the planning conditions were not in force. The Council intended to remind the owner of the need to comply with the 2016 planning permission once they traded as a café again. The Council confirmed it was negotiating with the owner to remove the bar and paint over the mural.
27. The Council recently issued an enforcement notice to the café owner to remove the wooden structure at the front of the premises. It has also asked the owner to remove the wooden stage at the rear as this facilitates the unauthorised use of the garden.
28. The Council confirms the café has a licence to sell alcohol, although currently suspended. The Council’s licensing team are due to visit the building to see if there are any unauthorised alcohol sales.

My assessment

29. The documents provided by the Council show it responded to Mr X’s complaints in 2020 about possible breaches of planning control at the café. Planning enforcement officers have considered the evidence available. Mr X refers to previous breaches but there is no evidence Mr X complained to the Council about these before 2020. As the Council explains it cannot now investigate historic breaches of the planning permission.
30. The café currently operates as a takeaway service because of the COVID-19 temporary planning regulations in place. This means the planning conditions from 2016 are not currently in force. Despite this the Council has been able to carry out some enforcement action. It investigated Mr X’s concerns and tried to negotiate informally with the café owner. But it is now taking more formal action by serving planning enforcement notices to remove the wooden structures at the front and rear of the premises. However, in liaison with conservation officers, the Council has decided it is not expedient to take action to remove the mural. The Council’s actions are according to its enforcement policy and the enforcement action is continuing. There is no evidence of fault by the Council. It has acted to deal with the breaches it has identified and as we would expect it to do.

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Final decision

31. I am completing my investigation. I have found no evidence of fault by the Council in the way it dealt with Mr X’s complaints about alleged breaches of planning control at a café near to his home.

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Parts of the complaint that I did not investigate

32. I have not investigated Mr X’s concerns about possible breaches of planning control before 2020. As paragraph four explains we expect people to complain to us within 12 months of being aware of an issue. It was open to Mr X to complain to the Council about the alleged breaches before 2020 and to us if he considered the Council failed to act. There is no evidence Mr X complained about the alleged breaches before 2020 so I do not consider there are grounds for me to consider his concerns now about breaches before 2020.

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Investigator's decision on behalf of the Ombudsman