Summary: We have found the Council at fault for closing an enforcement case before properly investigating Mr X’s report of a breach. The Council remedied Mr X’s injustice by reopening the case and taking enforcement action. I have completed my investigation.

The complaint

1. Mr X complained the Council:
1. Failed to take enforcement action for the planning and licensing breaches against the restaurant owners to the rear of his property;
2. Ignored his and other residents’ concerns;
3. Delayed further action so the breaches are immune from action.

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What I have and have not investigated

2. I have not investigated historic planning and licensing approvals as Mr X was aware of these more than 12 months ago.
3. I have investigated matters which occurred from the point the Council refused a retrospective application from Mr X’s rear neighbours in January 2022.

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The Ombudsman’s role and powers

4. 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)
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. 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

7. I considered Mr X’s complaint and spoke to him about it.
8. I have also considered the Council’s response to Mr X and to my enquiries.
9. Mr 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

Legislation

10. The Licensing Act 2003 states that when considering an application for a licence, the licensing authority must have regard to the promotion of the licensing objectives. These are-
1. The prevention of crime and disorder;
2. Public safety;
3. The prevention of public nuisance; and
4. The protection of children from harm.
11. The Council’s Local Enforcement Plan sets out how the Council will investigate alleged breaches of planning control and the different types of enforcement action available to it. It says the Council has a duty to investigate alleged breaches of planning control and has discretionary power to remedy breaches. It highlights that all action must be proportionate and expedient. The Plan states that formal action can vary depending on the nature of the breach and the level of harm caused.
12. The different types of notice include:
• Enforcement notice
• Planning Contravention Notice (PCN)
• Breach of Condition Notice (BCN)
• Stop Notice
• Temporary Stop Notice (TSN)
13. The Plan sets out the time limits for taking enforcement action as well as the options available to the Council where an applicant fails to comply with the formal notices.

Background

14. Mr X’s property backs on to a restaurant. The restaurant operator sought and received permission for a covered storage area by installing a flat roof over the rear courtyard in 2019. The operator installed a different pitched retractable roof and used the area for outside dining instead of storage.
15. Mr X reported an alleged planning enforcement breach with the Council in October 2021. The Council visited the site and investigated. The Council informed the restaurant operator of the breach and set out the required steps to remedy the situation.
16. The operator submitted a retrospective planning application in November 2021 which sought to remove the planning condition that restricted the use of the rear area to storage only. The following month, the operator submitted an application to vary the licence. This included the removal of the condition that required the rear garden to be cleared of customers by 8pm.
17. In January 2022, the Council refused the retrospective planning application on the grounds that the removal of the condition would cause demonstrable harm to neighbours’ amenity in the form of noise and disturbance.
18. The same month, the Council refused the application to vary the licence condition for the rear garden on the basis that this would be contrary to the licensing objective relating to public nuisance in that it would adversely affect persons living in the area around the premises.

What happened (since January 2022)

19. In May 2022, the Council closed Mr X’s case. The file note stated the complaint was concerning the use of the rear garden space for entertainment purposes in breach of the planning approval which was for storage use only. It said the operators were challenged and submitted a retrospective application. The Council refused it and no such activities have occurred since March 2022. The note said that the case can be reopened if the activities reoccur. The note made no mention of the pitched roof.
20. In September, Mr X submitted a formal complaint to the Council about how it handled the enforcement investigation, specifically in relation to the pitched roof. The Council acknowledged its failure to properly investigate the breach and began a new investigation.
21. In October the Council visited the premises and in November, it issued a Planning Contravention Notice (PCN). The PCN required the restaurant operator to obtain factual information about the development and activities. The operator returned the completed PCN to the Council confirming that the area was being used for storage at that time and had not been used for dining for over a year.
22. The Council confirmed this information with a site visit. The Council wrote to the operator regarding the retractable pitched roof stating it did not have planning permission. The Council set out the options available to remedy the breach. These were to either apply for permission to retain the existing roof, or to change the structure to flat roof to match the approval.
23. In February 2023, the operator submitted a pre-application advice query to the Council. The Council requested further information, but this could not be obtained.
24. In May 2023, during my investigating, the Council issued and served a Breach of Condition (BCN) notice on the restaurant operator. This confirmed the breach of planning control, notably the installation of a pitched roof not in accordance with the approved plans. The Notice required the operators to remove the unauthorised pitched roof from the storeroom and install a flat roof in accordance with the approved plans.
25. The Council informed Mr X of the BCN and the timescales. The Council said it would visit the site on or after the 23 July, two months after the issuing of the BCN.

My findings

26. When the Council closed Mr X’s case in May 2022, the use of the rear garden by patrons had ceased, however, the pitched roof remained in situ. Mr X had informed the Council of this, stating it was not in accordance with the approved plans.
27. In its October 2022 response to Mr X’s complaint, the Council recognised it had been at fault for not properly investigating the construction of the retractable roof and use of rear area for dining. The Council opened a new enforcement investigation. I agree, the Council was at fault for closing the case without fully investigating the breach of conditions, specifically the roof construction.
28. The Council has remedied any injustice caused to Mr X by reopening the case and taking enforcement action against the operator by means of a PCN, then a BCN. I therefore have not recommended any further actions for the Council to take.

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Final decision

29. I have completed my investigation. The Council was at fault for not properly investigating Mr X’s report of an alleged breach of planning control. The Council has remedied Mr X’s injustice by opening a new planning enforcement case and taking formal action against the operator.

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Investigator's decision on behalf of the Ombudsman