Summary: There is no evidence of fault in how the Council made its decision that a material change of use had occurred at a property and it could not enforce the conditions of its existing planning permission.

The complaint

1. Mr X complains that the Council failed to enforce the conditions of planning permission for a house to be converted into flats when he reported the breach of conditions in 2019. Mr X considers that as a result he has suffered from noise nuisance from the property for longer than necessary.

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The Ombudsman’s role and powers

2. 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)
3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

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 have:

• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

6. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

7. The Town and Country Planning (Use Classes) Order 1987 puts uses of buildings into various categories known as use classes. A change of use of a building may require planning permission if it results in a change of use class.

What happened

8. The Council granted planning permission for a property adjoining Mr X’s property to be converted into flats. The planning permission was subject to a number of conditions including the submission of a noise insulation scheme for approval to the Council. This was to prevent excessive noise transmission to neighbouring properties. The owner of the property did not install noise insulation.
9. The Council’s records show that Mr X reported noise nuisance from the property on two occasions in Autumn 2019. Mr X cancelled two calls before officers could witness the noise. On the third occasion officers witnessed the noise and issued a warning notice to the owner of the property. Mr X has also said he reported the lack of soundproofing to the Council’s building control in 2018 and asked the noise team to speak to planning enforcement.
10. In late 2019 Mr X reported to the Council that the neighbouring property was being used as a hotel which was advertised online. Mr X said the flats were being used for parties which caused noise and public nuisance. In a further email Mr X reported that the owner had not complied with the conditions of the planning permission to convert the building into flats.
11. Officer A, planning enforcement officer, carried out a site visit which showed the flats were being used for short term accommodation. He notified Mr X of the outcome of his site visit and asked him complete diary sheets to record the level of use at the property.
12. In early 2020 Mr X returned the diary sheets which showed he was being disturbed by noise and anti social behaviour at the property. The Council asked Mr X to keep diary sheets for up to six months to record evidence of a change of use.
13. The Council requested the owner of the property submit an application to discharge the conditions of the planning permission to convert the property into flats. The owner did not submit the application.
14. The Council asked Mr X to keep further records of the disturbance from the property as it was difficult to evidence a change of use as the property had permission for flats.
15. In summer 2020, the Council also served a planning contravention notice on the owner to request more information about the use of the property. The owner did not respond.
16. Mr X and a neighbour submitted diary sheets which recorded further disturbance including noise and anti social behaviour from the property. In June 2020 officer 1 advised the harm caused by the use of the property appeared to be significant and he would be writing an enforcement report.
17. Mr X and his neighbour continued to report noise and anti social behaviour from the property. officer 1 advised that additional detail was needed for the enforcement report due to the ambiguous legal stance on short term accommodation. Mr X’s neighbour chased the Council for updates in autumn 2020.
18. Between late 2020 and early 2021 the Council drafted an enforcement report and consulted its legal services on a number of drafts of the report before issuing the enforcement notice in early 2021. The Council has said this was due to the complexity of the case. It has also said several council departments were involved together with the police.
19. The Council considered the use of the property as a short term let hotel was a material change from self contained flats. It also considered the change of use would not be granted planning permission. The Council issued an enforcement notice to the owner requiring the use of the property return to self contained flats. The owner appealed against the enforcement notice to the Planning Inspectorate who dismissed the appeal.
20. Mr X made a complaint to the Council via his councillor and raised a number of issues with the Council’s handling of the case. In particular Mr X was concerned about the Council not serving an enforcement notice for the breach of conditions of the planning permission for the conversion of the property into flats, including the condition for sound insulation. Mr X considered this had contributed to the noise disturbance he has suffered for two years.
21. The Council responded to Mr X’s complaint. It advised officers had dealt with the matter as a planning breach arising from a material change of use so could not take any action against the conditions attached to the planning permission for flats. This would need to be pursued as separate enforcement action. The change of use had to be resolved first. If the appeal was dismissed then the use of the property would return to flats and the conditions could be enforced.
22. In response to my enquiries the Council has said it started investigating two potential breaches which a breach of conditions of the planning permission for flats and whether there was a change of use. As the case progressed officers concluded the breach of planning control was the change of use rather than a breach of conditions. The impact on residents’ amenity from the change of use was significantly different from the use as flats.
23. The Council considers that given the current use is no longer flats, any conditions to the planning permission cannot be breached nor can action be successful pursued against this. The Council has said that if the use of the property reverts to flats then the conditions of the planning permission would apply and it could consider enforcement.

Analysis

24. There is no evidence of fault in how the Council reached its decision that there had been a material change of use and it could not enforce the conditions of the planning permission for flats. The Council reached this view after carrying out an investigation to determine the use of the property. The Council has considered whether it can enforce the conditions of the planning permission. It has explained why it considers a material change of use has taken place and why it cannot therefore enforce the conditions of the planning permission for flat. I am mindful Mr X strongly disputes the Council cannot enforce the conditions and he is being disturbed by noise. But I do not have ground to question its decision as there is no fault in how the decision was reached.
25. Mr X considers the Council missed the opportunity to enforce the condition for noise insulation before the change of use occurred at the property. He says he asked the noise team to refer the matter to planning enforcement for investigation. I do not know if the noise team referred the lack of noise insulation to planning enforcement for it to consider if there was a breach of condition. I also do not know what action was taken by building control.
26. But it is not proportionate for me to investigate the matter further as I do not consider any fault in not referring the matter to planning enforcement will have caused significant injustice to Mr X. Even if the Council had decided there had been a breach of planning control when Mr X first reported the matter to building control and then the noise in September 2019, it is likely the Council would have given the owner the opportunity to comply with the condition before considering enforcement action. And, even if the Council had served an enforcement notice at the outset then the owner could have appealed the notice. So, I cannot say, on balance, the outcome would have been any different for Mr X and the owner would have complied with the noise insulation condition before the change of use occurred.
27. The Council first indicated that it would serve an enforcement notice in June 2020 but did not serve the notice until February 2021. But, on balance, I do not consider the time taken by the Council to issue the enforcement notice to be fault. The Council has said the matter of whether there was a material change of use at the site was complex. It has demonstrated it was actively considering the matter during this time, including drafting the enforcement report and notice and consulting with other departments including its legal services. I therefore cannot conclude the time taken to issue the enforcement notice amounts to fault. However, it would have been better for the Council to have kept Mr X informed of why issuing the enforcement notice was taking some time.

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Final decision

28. There is no evidence of fault in how the Council made its decision that a material change of use had occurred at a property and it could not enforce the conditions of its existing planning permission. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman