Summary: Mr B complained the Council failed to take planning enforcement action to ensure that a restaurant near to his home complied with the condition on the planning permission. He said the restaurant operates in a way that means he, and his neighbours, suffer disturbance from customers leaving the premises late at night. There was fault by the Council but no further action is necessary.

The complaint

1. I refer to the complainant as Mr B. He complained the Council failed to take planning enforcement action to ensure that a restaurant near to his home complied with the condition on the planning permission. He said the restaurant operates in a way that means he, and his neighbours, suffer disturbance from customers leaving the premises late at night.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

Summary of the relevant events and background

6. Mr B lives opposite a restaurant. There are other commercial premises nearby but no eating or drinking establishments that are open in the evening. The premises has operated as a restaurant for many years so is not subject to any planning control. But the first floor was granted planning permission with a condition that it should not be used for dining after 11.00pm and before 7.00am.
7. Starting in April 2019 Mr B, and other neighbours, complained the restaurant was using the first floor after 11pm which was a breach of the planning permission. In August the Council emailed the restaurant’s agents saying it needed to comply with the condition. There was correspondence over the next few months between the Council and the agent about the condition. In early March 2020 Council officers met with the restaurant owners and agent to discuss the condition.
8. In March, after the national lockdown for the COVID-19 pandemic was imposed, the Council closed the enforcement investigation because the restaurant was closed for the foreseeable future.
9. Mr B and other neighbours disagreed with this decision and there was correspondence over the next few months.
10. In early September 2020 the Council opened another enforcement investigation about the use of the first floor. Later that month it said the restaurant owners had agreed to submit a planning application to vary the condition within the next month. No application was submitted and it closed that investigation when another national lockdown was imposed.
11. In August 2021 the Council opened a further enforcement investigation about the use of the first floor and another matter which does not form part of this complaint. The Council closed its investigation in September. It said there had been no change in the use of the first floor and that its position had previously been that it was not expedient to take enforcement action and that had not changed.
12. Mr B complained and the Council responded under its complaint procedure but maintained its position that there were not grounds to take planning enforcement action.

Analysis

13. Councils can take enforcement action if they find planning rules have been breached. Action is discretionary and 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. Even where there is an accepted breach of planning control the Council can decide not to take any action.
14. The Council closed the first two enforcement investigations relating to this point because the restaurant had to close because of lockdown restrictions. The Council had not come to a view on whether it should take enforcement action. It had rightly advised the restaurant that enforcement action was possible and that it could submit an application for the condition to be removed. The restaurant had said it would but that had not happened. It was. therefore, wrong for the Council to say in September 2021 that it had already decided not to take enforcement action because it was not expedient to do so. The Council had not investigated whether there were grounds for action.
15. The Council said there were no complaints to the noise and nuisance team over the last 18 months of disturbance from people leaving the restaurant. It suggested it will now make unannounced pro-active visits to the area.
16. The Council is right to say it can only take enforcement action if there is evidence that the breach of the planning condition is having an adverse impact. Mr B did report incidents in August last year which prompted the Council to open the enforcement investigation but it would need evidence of recent, and likely to be ongoing breaches, to take action now. Recently the restaurant has agreed not to use the upstairs area after 11pm. Therefore, there are no grounds for any further action by the Council at the moment. If Mr B, or other residents, suffer further disturbance caused by the use of the upstairs dining area after 11.00pm they wlll need to report it to the Council.
17. We cannot say the Council’s failure to properly investigate at the end of last summer has altered the position. Even if it had investigated it may not have established that there were sufficient grounds to take action.

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Final decision

18. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman