Summary: Mr X complained the Council did not take enforcement action against his neighbour who constructed an outbuilding and began using it to provide services to the public. There was no fault in the way the Council made its decision not to take enforcement action.

The complaint

1. Mr X complained that the Council did not use its powers to protect him against his neighbour, who built an outbuilding close to his boundary and began using it to run a small business.
2. Mr X said the use of the outbuilding and visitors to it are affecting his amenity.

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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. 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

5. I read the complaint and discussed it with Mr X. I read the Council’s comments on the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision and took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
9. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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. Councils may also decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.
12. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
13. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

14. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’.
15. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.

What happened

16. Mr X’s neighbour’s home backs onto the side of Mr X’s property. The neighbour sought planning permission to construct an outbuilding and to use it to run a small business. The business proposed involved delivering professional services to the public, which are delivered on site.
17. The Council considered the application and advised the neighbour that:
• The building might fall within permitted development limits, so no planning application would be required.
• The neighbour could apply separately for permission to change the use of the outbuilding to provide professional services.
18. The neighbour withdrew the planning application and constructed the outbuilding. When building work finished, Mr X thought it was outside permitted development limits because it was 5cm too high and within 2 metres of the boundary. Mr X also complained about the use of the outbuilding and how it affected his amenity.
19. Mr X complained to the Council and an enforcement officer visited the site. The enforcement officer decided that the outbuilding was within permitted development limits, as it was 2.5 metres in height and within 2 metres of the boundary.
20. The enforcement officer also said that, because of Covid 19 restrictions, the use had not actually begun and so no assessment could be made as to whether on balance, the use of the site had changed from residential use to professional services. The enforcement officer said he advised Mr X of the number of visits to the site that might persuade it a change had occurred. The enforcement officer said he suggested that, when business resumes, Mr X might provide diary sheets of customer visits so the Council could consider the matter further. Mr X did not want to do this as he felt uncomfortable spying on his neighbour: Mr X thought the Council should collect its own evidence.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant.
22. 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.
23. The Council is aware of Mr X’s allegation and has investigated it, before making its decision. It has followed the process we expect and so I find no evidence of fault.

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Final decision

24. I completed my investigation as there was no fault in the way the Council made its planning enforcement decision.

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Investigator's decision on behalf of the Ombudsman