Summary: Ms X complained about the Council’s delayed response to her reports of a breach of planning control at a neighbouring property and poor communication. The Council was at fault for delay in investigating all aspects of the reported breach and poor communication on planning breach closures. The Council will apologise for the delay, pay Ms X £100 for the avoidable time and trouble caused and give additional guidance to officers.

The complaint

1. Ms X complained about the Council’s delayed response to her reports of a breach of planning control at a neighbouring property and poor communication. Ms X said the noise has caused her distress and writing to the Council caused her time and trouble. Ms X would like the Council to apologise and carry out a site visit to investigate the neighbouring property sub-division.

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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 an organisation’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 Ms X’s complaint and supporting documents.
5. I considered the Council’s comments about the complaint and the supporting documents it provided.
6. I considered the Council’s policies, and relevant law and guidance as set out below.
7. Ms X and the Council had the opportunity to comment on the draft decision. We considered their comments before making a final decision.

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What I found

Planning law, guidance and local policy

Enforcement

8. Councils can take enforcement action if they find planning rules have been breached.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. The planning enforcement process takes time and we expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides a breach of control, it must consider what harm is caused to the public before deciding how to act. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on whether and how to act.
10. Councils have a range of options for formal planning enforcement action available to them, including issuing a Planning Contravention Notice (PCN). The council can ask for information from the owner or occupier of land and provide an opportunity to correct the alleged breach.
11. The Council’s Local Planning Enforcement Plan dates from 2021 and is published on the Council’s website. This sets out areas of priority, a framework for the assessment and ranking of breaches of planning controls, and the circumstances in which the Council should take formal action. The plan reflects national planning enforcement policy and guidance. The plan states low priority breaches (those not involving significant public complaint) will be responded to in 20 working days. It sets out the steps it will take to investigate, including site visits, negotiation and formal action, as needed. It states it will keep complainants updated.
12. The Council website explains that interior changes will not amount to a breach of planning control.

Statutory nuisance

13. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance may include noise from premises and smells from industry, trade or business properties. To be a ‘statutory nuisance’, the matter complained about must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.

House In multiple occupation (HMO)

14. A house in multiple occupation (HMO) is a property rented to at least three people who are from two or more households and share facilities such as a kitchen or bathroom.

What happened

15. Ms X told the Council she had concerns about the property adjoining hers, Property Z. A private sector housing officer carried out a site visit in February 2022 to establish whether Property Z was a house in multiple occupation (HMO).
16. In early March 2022 the Council sent Ms X a planning enforcement closure letter. This said ‘Thank you for bringing this matter to our attention. Having investigated this matter I can confirm that no breach of planning control has occurred. No evidence was found to show that a HMO is in use. Accordingly, this case has been closed’.
17. In mid-March 2022 Ms X contacted the Council again. She said:
• her neighbour was letting Property Z as an HMO without planning permission;
• she experienced noise from a kitchen converted from a bedroom;
• an outbuilding on Property Z’s land had been let as a self-contained flat; and
• there was an entry on the Council mapping programme showing sub-division had taken place.
18. In late March 2022 the Council responded to Ms X and asked for more information. Ms X explained:
• a bedroom had been converted into a kitchen at Property Z causing noise;
• she had no photographic evidence Property Z was an HMO; and
• the outbuilding at Property Z was a residential unit.
19. In early April 2022 Ms X emailed the Council for an update. The same day the Council responded to Ms X and said it was ‘looking into serving a planning contravention notice (PCN)’. The same day the Council issued a PCN to the owner and occupiers of Property Z and requested information about the alleged HMO breach.
20. In late April 2022 a council officer spoke to Property Z’s owner to clarify the identity of the occupants of Property Z. The Council received a response to the PCN which confirmed the house was not being used as an HMO. The Council said it also gathered information from other Council departments.
21. In late April 2022 Ms X asked the Council for the PCN outcome and about the site visit in early February 2022.
22. In early May 2022 the Council concluded the HMO enforcement investigation based on evidence from the site visit, PCN enquiries and information gathered from other Council departments. It sent Ms X a closure letter stating Property Z was not an HMO.
23. In early May 2022 the Council registered the outbuilding as a second enforcement investigation.
24. In mid-May 2022 Ms X asked the Council several questions about the Property Z outbuilding, sub-division and HMO enforcement case closure. The Council responded two days later. It said Property Z was not an HMO based on the site visit and information provided by the owner of property Z in relation to the PCN. The Council said it had opened a new case to consider the outbuilding and Ms X should submit a new enquiry form if she still thought Property Z was operating as an HMO.
25. Two days later Ms X submitted a new enquiry form. She said Property Z had been subdivided into one or more self-contained residential units and a kitchen had been installed in a first-floor front bedroom. The Council gave this enforcement enquiry the same reference number as the outbuilding enforcement enquiry.
26. In early June 2022 the Council sent Ms X a planning enforcement closure letter. This said: ‘Thank you for bringing this matter to our attention. Having investigated this matter I can confirm that on the evidence provided. On the balance of probabilities, the unauthorised development/material change of use has been substantially complete/ in continuous use for the requisite 4/10 years. Accordingly, in relation to S171 of the Town and Country Planning Act 1990, no enforcement action can be taken. Accordingly, this case has been closed’.
27. The letter caused Ms X confusion. She did not know which part of the enforcement enquiry had been closed and if it referred to the outbuilding or the subdivision of the main property. Ms X asked the Council to clarify this three times in mid-June 2022.
28. In mid-June 2022 Ms X asked the Council if a planning officer had undertaken a site visit to Property Z and she sent the Council an appeal decision relating to a different property to indicate a new private kitchen could constitute a material change of use. The Council said no site visit had taken place by a planning officer and to install a kitchen did not form a material change.
29. In late June 2022 Ms X made a formal complaint to the Council. She said:
• she submitted an HMO enforcement enquiry in March 2022 as she was disturbed by noise coming from a kitchen and was concerned about an out building that was let out as a self contained flat;
• a PCN was issued but closed following a response from the owner and she was only informed about this after contacting the Council officer;
• she was ‘surprised’ a private sector housing officer made a planning breach decision;
• the Council did not answer her questions from late April, mid-May and mid- June 2022 and she wanted ‘open and honest’ communication from the Council answering her questions;
• the Council gave the outbuilding and subdivision enforcement enquiries the same reference number causing confusion on which issue it closed; and
• she gave information on an appeal relating to a different property which showed a kitchen installation within a bedroom would be a change of use but the Council response stated it still did not constitute a change of use.
30. In mid-July 2022 the Council responded to the stage 1 complaint, it said:
• it had looked into Ms X’s HMO concerns, issued a PCN, decided her Neighbours property was not an HMO and sent a closure letter. The Council agreed the content of the closure letter was not clear and apologised;
• it registered a second enforcement case in early May 2022 for the outbuilding. The evidence gathered by the Council showed it had been in continuous use since 2011 and was therefore immune from planning enforcement action. The Council admitted the content of the closure letter could be clearer and apologised;
• the appeal decision Ms X referred to could not be applied to Property Z;
• the Council apologised for the officer not responding to Ms X’s emails from mid-June 2022; and
• the Council could not disclose records from third party investigations.
31. In early August 2022 Ms X raised a stage 2 complaint, she said:
• the Council’s poor communication and not answering her questions caused her an injustice;
• her complaint from mid-May 2022 about Property Z sub-division was still outstanding; and
• the appeal decision does apply to Property Z.
32. In early September 2022 the Council responded to Ms X’s stage 2 complaint, it said:
• the appeal Ms X referred to could not be applied to Property Z and it was considered on its own merits;
• the Council’s HMO investigation determined the property was not being used as an HMO;
• as part of the HMO investigation the outbuilding allegation was investigated and was lawful because of the passage of time;
• Ms X’s response to the stage 1 complaint had only now alleged the interior of property A was subdivided to create a flat with a kitchen on the first floor.
• it had opened a new enforcement case on the subdivision allegation, which would be investigated.
33. Ms X was unhappy with the Council’s response and complained to us.

Enquiry response

34. In response to my enquiries the Council confirmed it received a noise complaint about Property Z in late July 2021. Concerns were raised about noise from a kitchen that had been converted from a bedroom. The Council responded to the complaint the same day and sent diary sheets to the complainant. In early December 2021 the Council closed the noise complaint because the diary sheets were not completed and returned.
35. In response to my enquiries the Council confirmed a private housing council officer visited Property Z in early February 2022 and provided a copy of the visit record. It confirmed the investigation concluded it was not an HMO because the owners were living in the property and renting two rooms to lodgers, so it did not meet the criteria to be classed as an HMO.
36. The Council confirmed in late August 2022 it opened a new enforcement case for the subdivision of Property Z. This was classed as a ‘low priority’ in line with its Local Planning Enforcement Plan (2021). In early September 2022 a planning enforcement officer carried out a full internal site visit and established the property was not subdivided into two flats. In mid-September 2022 the Council sent Ms X a closure letter to advise her Property Z had not been subdivided and was not an HMO.

My findings

37. It is clear from the documents seen that Ms X did raise three issues of concern at the outset. The Council initially only considered the HMO issue. It later considered the outbuilding. In late August and September 2022 the Council considered the subdivision. The Council was at fault for not investigating all three aspects of Ms X’s complaint from the start. The delay in investigating all aspects meant Ms X was put to avoidable time and trouble submitting further enquiry forms.
38. The Council did not keep Ms X updated, in line with its policy, and did not respond to her emails in June 2022. It accepts its closure letters were unclear, which meant Ms X was confused about which case had been closed and the reasons for not taking enforcement action. In its stage 2 complaint response in September 2022, the Council wrongly said Ms X had not raised the issue of the sub-division until after its stage 1 response. The poor communication was fault. The Council has apologised for the poor communication, which is an appropriate remedy for the injustice caused.
39. The Council provided evidence to show it took appropriate action to investigate Ms X’s concerns that Property Z was subdivided. I have not seen evidence the Council has made a decision on if the noise complaint is a statutory nuisance but on balance taking into account the information provided by Ms X I consider it unlikely it would amount to a statutory noise nuisance. However, we would expect the Council to consider and investigate any new noise complaint and decide if it is a statutory nuisance.

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Agreed action

40. Within one month of the final decision the Council will:
• apologise for the delay in investigating all three aspects of Ms X’s report;
• pay Ms X £100 for the avoidable time and trouble caused pursuing the Council; and
• give guidance to relevant officers about the need to ensure closure letters provide enough information for complainants to understand which case has been closed (if more than one open case) and the reasons why the Council has decided enforcement action is not appropriate.

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Final decision

41. I have completed my investigation finding fault with the Council causing injustice. The Council has agreed to take action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman