Summary: Mr X complained about the Council’s failure to take planning enforcement action against his neighbour, who is alleged to be carrying out a business in breach of a Planning Enforcement Notice. Mr X said the neighbour’s business causes noise and parking difficulties in the area. We found fault in the Council’s explanation and application of data protection issues. This did not cause Mr X an injustice, but the Council accepted our recommendations to avoid recurrence of the fault in future.

The complaint

1. Mr X complained that the Council failed to take enforcement action against a neighbour, who is unlawfully using their home to run a business. Mr X said the use of the business is noisy and makes car parking on the highway more difficult.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I read the complaint and discussed it with Mr X’s representative. I read the Council’s response to the complaint and considered documents from its planning files, including a planning inspector’s decision and enforcement officer’s reports.
5. I made enquiries of the Council and considered its responses.
6. I received advice relating to data protection and council enforcement functions from the Office of the Information Commissioner.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

8. 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’.
9. 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.
10. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
11. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
12. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
13. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

14. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

Data Protection law

15. The Information Commissioner's Office (ICO) considers complaints and provides advice about data protection and freedom of information issues. Its decision notices may be appealed to the First Tier Tribunal (Information Rights).
16. Anyone responsible for using personal data must follow rules, known as the data protection principles. Amongst other things, they must ensure information is:
• Used fairly, lawfully and transparently;
• Used for specified and limited purposes; and
• Kept no longer than is necessary.
17. Individuals have rights relating to data, which may include:
• To be informed about how your data is used;
• Access to personal data;
• To have personal data erased; and
• To stop or restrict the use of personal data.
18. Use of data is allowed, providing it complies with data protection rules and exemptions. There is an exemption available for prevention and detection of crime. The ICO issues guidance to enforcement bodies which is available on its website.
19. A public authority enforcement body must be able to demonstrate a lawful basis for processing protected data. There are several different bases that might apply to different situations during an enforcement investigation. One basis is a public task, for situations where:

‘… the processing is necessary to perform a task in the public interest or for an official function, which has a clear basis in law.’

20. It is possible to claim harassment was caused by the unlawful use of CCTV equipment, but an allegation of harassment is for a court to decide.

Background

21. Mr X complained to the Council about a neighbour, alleging the neighbour was selling or hiring vehicles from his home, without planning permission. Mr X said the vehicles were parked on a parking area in the front garden of the house and on the street. Mr X complained about the noise and disturbance, as well as the impact it had on on-street parking.
22. The Council served Mr X’s neighbour with a Planning Contravention Notice to request information. It later served a Planning Enforcement Notice requiring the neighbour to cease the use of the land for unauthorised use of a residential property for the storage of vehicles for hire or sale. The notice also required the neighbour to remove all vehicles used in connection with the business.
23. The neighbour appealed against the Enforcement Notice and the appeal was heard by a planning inspector, who refused it. This allowed the Council to continue its enforcement action.
24. The Council asked Mr X to provide CCTV evidence to help it prove that an unlawful business was operating from the neighbour’s home. Mr X provided the Council with video footage from a CCTV camera fitted to his house, which faced towards his neighbour. He also provided video footage and photos taken from his mobile phone.
25. The Council considered the evidence and sought advice from its solicitor. The solicitor said the video footage could not be used, because:
• The CCTV video and camera footage Mr X provided was of very little evidential value. This was because, while it showed people standing and talking near vehicles, the Council could not know what was being discussed or agreed; and
• The CCTV evidence submitted cannot be used is due to data protection issues. The Council said this is because the cameras on Mr X’s home were directed towards the neighbour’s home, rather than over the complainant’s own property. The Council said that this may amount to harassment.
26. The Council said that, as the neighbour kept these vehicles partly as a hobby, it could not say that vehicles stored on the site were kept solely for business purposes.
27. The Council said that while the Enforcement Notice was still enforceable, it had stopped its enforcement investigation because it was unlikely to result in a successful outcome.
28. Mr X’s representative told me that Mr X is disappointed the Council ended its investigation. However, the representative said that the Council had continued to respond to allegations and had recently been responding more quickly to complaints about new vehicles. The representative said that the Council’s recent actions had led to improvements on the street, with vehicles being removed and the neighbour more often operating from a business premises away from his home.

My findings

29. The Council asked Mr X to provide CCTV information and later told him it was of no use.
30. The Council gave two reasons for ending its Enforcement Notice compliance case.
31. The first was that video or photos showing individuals meeting on or near the land, did not provide evidence that a deal was made relating to a vehicle sale or hire. The Council is entitled to make this judgement and so I find no fault in relation to this part of its response.
32. The second reason was that the CCTV data could not be used because of data protection issues. The advice I have had from the ICO does not support the Council’s position. The ICO explained that a public authority enforcement action is likely to satisfy lawful basis tests and exemptions. There is no prohibition on using CCTV where, for example, a public authority is investigating or preventing potential crime, providing the data processing rules are followed.
33. The Council also said that the CCTV footage might amount to harassment of individuals. This may be so, but this would be a matter for a court to determine.
34. I find the second reasoning the Council provided in its response to my enquiry to be flawed. In relation to its explanation and application of data protection law for CCTV evidence, I find fault.
35. As I have not criticised the first reason the Council gave, relating to the evidential value of the footage, I am not persuaded the fault I have found made any difference to the outcome in this case. However, I think it is important to remedy any potential injustice that may occur in the future by recommending a service improvement.
36. I made recommendations to the Council to avoid recurrence of the fault, which it has agreed to carry out.

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Agreed action

37. To avoid future injustice that might be caused by recurrence of the fault I have found, the Council has agreed to:
• Review its planning enforcement processes, policies and practices relating to the lawful use of personal data and information and CCTV, to ensure they are fit for purpose and in line with data protection law
• Refer our findings and the outcome of its review through the relevant Council governance process for planning policy; and
• Inform the Ombudsman of the results of its review within 3 months from the date of our final decision notice.

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Final decision

38. I found fault in the way the Council explained and applied data protection law. I completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman