Summary: We have discontinued our investigation. The Council has taken enforcement action against Mrs X’s neighbour. Further investigation is unlikely to lead to a different or better outcome for Mrs X.

The complaint

1. Mrs X complained the Council failed to take enforcement action against a business close to her home.
2. Mrs X complained the business is in breach of planning control and conditions. She said the permission is only for storage, but distribution activities are taking place on site. In addition, she said the business is operating outside the conditioned operational hours.
3. She said the activity on the site disturbs her and deprives her of sleep.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. 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:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

8. I have considered Mrs X’s complaint and have spoken to her about it.
9. I have also considered the Council’s response to Mrs X and information it has provided to me.
10. Mrs 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 regulations

Planning enforcement policy

11. 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.
12. 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.
13. 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 2021, paragraph 59)

Use classes

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.

The Town and Country Planning (Use Classes) Order 1987

Class B1. Business

Use for all or any of the following purposes

1. as an office other than a use within class A2 (financial and professional services),
2. for research and development of products or processes, or
3. for any industrial process,

being a use which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.

Class B8. Storage or distribution

Use for storage or as a distribution centre.

What happened

16. Mrs X’s garden adjoins an industrial site. The buildings were converted from redundant agricultural buildings to business use in 2010. The original planning permission was for use class B1 and B8. Over the next 12 years, the business submitted planning applications for various changes including variation of conditions to change operating hours.
17. Mrs X said the problems began in 2016 when distribution operations started on the site. Mrs X reported frequent alleged breach of conditions about use class and operation hours to the Council over the next 4 years.
18. She said despite countless reports, the Council did not take adequate enforcement action. Mrs X complained to the Council in 2020 because she said she did not receive an adequate response to her reports.
19. The Council said that use class B8 is storage and distribution. Therefore, the business was not in breach of planning control for the movement of goods to and from the site.
20. The Council apologised for its poor communication with Mrs X.
21. During the course of my investigation, the Council served a breach of condition notice against the business. This was in relation to hours of operation.

My findings

22. I have not considered historic matters as Mrs X could have complained to us sooner. Looking at the matters arising over the past 12 months, the Council has acknowledged its communication with Mrs X has been poor. This may have led to me finding fault with the Council. However, the level of injustice to Mrs X caused by this fault is limited and I therefore have discontinued my investigation.
23. The Council has now taken enforcement action against the business. If I were to continue investigating, and fault found fault causing an injustice, I could not achieve an outcome better than this. Therefore, I have discontinued my investigation.
24. I understand that Mrs X disagrees with the Council’s decision to only take action against one of the alleged breaches. She remains dissatisfied with the Council not taking action against the business for distribution activities on site. As I have discontinued my investigation, I will not be considering this matter any further.

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Final decision

25. I have discontinued my investigation. Further investigation is unlikely to lead to a different or better outcome for Mrs X.

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Investigator's decision on behalf of the Ombudsman