Summary: We will not investigate this complaint about the Council’s decision not to take planning enforcement action against a breach of planning control. There is not enough evidence of fault by the Council.

The complaint

1. The complainant, whom I shall call Mr X, complains the Council refuses to act against a business which is exceeding its seating capacity for customers. He says the business should not be permitted to hold a pavement license because of the same restriction on seating capacity.
2. Mr X wants the Council to enforce the restriction and not to issue a new pavement license.

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The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says the business has more seating than allowed and it is operating as a shop, café and office.
7. The Council has explained to Mr X that it cannot take enforcement action as the new changes to planning classes has effectively allowed the business to change use without planning permission.
8. The planning permission allowed the business to have an ancillary use as a café. Now the main authorised use is a café, and it would not be reasonable to enforce given the flexibility the class changes have given.
9. The Town and Country Planning (Use Classes) Order 1987 (as amended) puts uses of land and buildings into various categories known as 'Use Classes'. Change of use can occur within the same Use Class or from one Use Class to another.
10. In 2020 the Government changed the planning classes. It decided that any use under the previous Use Class Order in Class A which was split up in to differing uses would now be included as one class, the new Class E.
11. The planning class for a shop was previously A1 and the previous use for a restaurant, snack bar or café was A3. Under the new classes from September 2020, the retail sale of goods and the sale of food and drink for consumption (mostly) on the premises fall into the new class E.
12. The Council has considered Mr X’s reports of a breach of planning control and decided that given the change in use classes it is not expedient to take enforcement action. I appreciate that Mr X may not accept the Council’s decisions, but the Ombudsman is not an appeal body. We do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether Mr X disagrees with the decision the organisation made.
13. The Ombudsman has already addressed the issuing of a pavement license to the business in a previous complaint from Mr X. We will not revisit the matter.

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Final decision

14. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman