Summary: Mr X complained the Council did not take effective action with complaints he made with alleged planning breaches against the business he lives above. We did not find fault with the Council’s general actions and decision there was no planning breach. We found fault with it failing to properly evidence its consideration of Mr X’s reports about anti-social behaviour, causing him frustration and uncertainty. The Council has agreed to apologise and take action to prevent future recurrence.

The complaint

1. Mr X complains the Council has not taken appropriate enforcement action to reported planning breaches by a business he lives above. He says the Council has also not properly investigated, or responded to, several concerns he has raised about associated anti-social behaviour and environmental concerns with the business, such as noise and litter. This has caused frustration and uncertainty, and he says this has had a significant negative impact on him and other residents.

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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 significant injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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).
4. 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)
5. 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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What I have and have not investigated

6. Mr X referred to events since mid-2023. Mr X complained to us in December 2024. Part of the complaint is therefore late (see Paragraph 4). I will not consider that far back as I am satisfied Mr X could have come to us sooner about the earlier period.
7. I have investigated events from February 2024 to late November 2024 (when Mr X received the Council’s final response to his formal complaint).
8. We expect councils to have the opportunity to formally consider new or ongoing matters under its formal complaints procedure first before we investigate. Mr X is entitled to make a new complaint direct to the Council if he is dissatisfied with what has happened since November 2024.

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How I considered this complaint

9. I discussed the complaint with Mr X and considered his views.
10. I made enquiries of the Council and considered its written responses and information it provided, as well as relevant law, policy and guidance.
11. 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

Law and administrative background

Planning enforcement

12. 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.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Background

14. Mr X lives above “the Business”. Decades ago, it had planning permission as a restaurant, and later it was allowed to sell takeaway food between certain hours. In late 2023, the Council granted permission to extend the takeaway opening hours.

What happened – summary of key relevant events

15. In February and March 2024, Mr X made reports to Planning Enforcement (“PE”). He said the Business operated outside its permitted hours and provided evidence from a third-party food delivery website. The Council acknowledged these.
16. The PE officer contacted the Business advising it of the reports. The PE officer updated Mr X and later said it was satisfied with the action taken by the Business. The PE officer followed up with Mr X as he had not filled out diary logs as further evidence. It closed the case. Mr X responded and said the Business had since adhered to the hours.
17. In late February 2024, Mr X said he made a report to the Anti-Social Behaviour (“ASB”) online portal, and he said it told him it would pass information to relevant teams and the Police. The Council has not recorded it received this report.
18. In early April 2024, Mr X made an online report of an alleged planning breach. He said the Business operated solely as a takeaway, in breach of conditions stating the takeaway must operate as ancillary. He said this resulted in an increase in litter, parking issues and ASB. The Council acknowledged this and wrote to the Business.
19. In early June 2024, Mr X asked for an update. The Council replied saying the PE officer had a meeting scheduled with the Business to discuss the issues. In mid-June 2024, the Council asked the Business to apply for planning permission. It was of the view it operated the takeaway separately to the restaurant as opposed to ancillary.
20. At the start of August 2024, the PE officer contacted Environmental Health (“EH”) and the ASB team. Both confirmed they had not received any or recent complaints about the Business. The PE officer contacted the Highways team. Highways said there were no parking restrictions in the vicinity. It did not have any objections around takeaway use relating to parking.
21. A Councillor, on Mr X’s behalf, contacted the Council for an update. The PE officer outlined actions it had taken. They would consider if it was expedient to take formal enforcement action.
22. In late August 2024, Mr X emailed the Council about the increase in commercial waste from the Business bins. Mr X also wrote to the ASB team with further concerns about how the takeaway contributed to noise disturbances and ASB. The ASB officer contacted PE and the PE officer confirmed they had an open case with the Business. The ASB officer acknowledged. The Council’s log show it visited the Business and conducted a waste management inspection. It did not note any issues. A case note said it updated Mr X by phone. There are no notes of the call. A week later, the Council’s log said it visited again and noted no waste or noise issues.
23. In early September 2024, Mr X emailed the ASB team again as noise and disturbance continued, attaching video evidence. He did not receive a reply.
24. In late September 2024, after contact with the Business, the PE officer visited the premises. The next day, the PE officer updated the Councillor. They acknowledged the restaurant portion was not in use with just the takeaway currently, but they did not believe it to be separate. They had advised the Business how it needed to operate with both sides, and they would close the case. It said Mr X’s concerns about ASB had been raised to the ASB team.
25. At the start of October 2024, Mr X made another report to Planning. He said residents were being disturbed by outside dining at the Business, and he had reported ASB in August. The Council acknowledged this. Planning later informed Mr X it noted his photos and decided the table and chairs were not development and it closed the case.
26. Planning wrote a report with its decision about the Business. After a site visit, it established the use of the Business as a restaurant and takeaway but noted the restaurant part was not in use. The Business confirmed it intended to reopen the restaurant part after renovations, and it was aware the restaurant should be the primary use. The Council decided there was no breach of planning, and the temporary closure of the restaurant part did not amount to abandonment of that side’s use. It closed the case. Mr X formally complained. He requested the Council consider the negative impacts with how the Business’s specific operation as a sole takeaway was affecting residents with ASB. The ASB officer told Mr X Planning were primarily dealing with the matters.
27. A Council record said the ASB officer visited a few days later and noted no issues with waste or noise. The record said it updated Mr X of this. There are no notes of the call.
28. In its final complaint response, the Council outlined its reasoning for deciding there was no planning breach within its report. It was satisfied with its actions, and it had appropriately investigated Mr X’s concerns. In December 2024, Mr X complained to us.

The Council’s response to my enquiries

29. I asked the Council if it had considered timescales to review the Business or to monitor the situation. The Council said its PE service does not have the resources to proactively monitor all situations. This was in its Local Enforcement Policy. It said it had a reliance on residents and their knowledge to inform the Council, to which it would then act. It said it had not received further complaints.

Analysis

30. The Ombudsman is not an appeal body. It is not our role to decide if there is a planning breach, whether councils should take enforcement action, or make our own judgements and assess the strength of evidence provided to a council. That is the role of the council. We consider the process a council followed to make its decisions and whether there was fault in the way the council investigated or what it considered when it made its decisions. If there was no fault with the decision making, we cannot question the outcome, no matter how strongly a complainant disagrees with it. We may also criticise a council if it has not considered relevant evidence or properly explained its reasons for decisions.

Permitted opening hours and Highways concerns

31. The Council acknowledged Mr X’s concerns about the Business’ operating hours. It took appropriate action by contacting the Business and later explaining to Mr X what it had done and why it closed the case. Mr X also said it was resolved at the time. I do not find the Council at fault for this.
32. Mr X also reported parking issues. The Council said there are no parking restrictions around the Business and so it is not able to take enforcement action through its civil powers. Its website directs reports in these cases should be made to the Police. I do not find the Council at fault on this part.

Planning and no breach decision

33. There appeared to be some dispute or contention about the nature of the alleged planning breach that Mr X reported. The Council initially thought the Business operated the takeaway separately from the restaurant part, where the permission required it to be ancillary, and asked for a planning application. Upon further investigation, it concluded it was not running it separately due to factors such as entrances, space with shared facilities and kitchen. Mr X pointed out it was operating solely as a takeaway, which would be the breach. The Council acknowledged this, worked with the Business around the concerns, gathered relevant information from it and through a site visit. It told the Business it needed to operate both sides and it was satisfied it would reopen the restaurant side. I do not criticise the overall process. In its decision report, it explained what it considered and why it now decided there was no breach. It also appropriately considered the outside dining.
34. I understand Mr X strongly disagreed and wanted it to assess it solely as a takeaway with its associated negative impacts to the public, however this is a decision the Council is entitled to make from a Planning perspective. There was no fault with the decision-making process, and therefore I cannot criticise the professional merits of the decision it made. As there was no breach, the Council did not need to consider harm or if it was expedient to act.
35. While the Council could have set actions to follow up with the Business, it is not obliged to do so. It is entitled to be proportionate with its resources. It is open to Mr X to report to the Council if this has not been done and we’d expect the Council to investigate if there are any further planning concerns. Whether he has or not is outside the scope of my investigation, and he is entitled to make a new complaint to the Council.
36. I am satisfied the Council generally took positive steps throughout. But I note its fault with poor communication at times as it did not always provide timely updates to Mr X, causing him frustration and he had to get his Councillor involved.

ASB concerns

37. Mr X said he made an online portal report about several ASB incidents in February 2024. I cannot see records showing the Council received or logged this. Mr X said ASB told him it would pass information on. But there are no supporting records of any response it may have made to Mr X. On balance, I cannot make a safe finding either way on whether there was fault or inaction by the Council on this part.
38. The Council’s records show it made a waste inspection visit in August 2024 and noted no issues with the Business. It said it updated Mr X. It made another visit the next week and again noted no issues. But I cannot see what it told Mr X, for example if it closed the case at this point or if it would gather other evidence. I have not seen any contemporaneous evidence of its decision making at this point.
39. The Council did not respond to Mr X’s direct email to the ASB team in September 2024. I have not seen records to show it considered his video evidence. This is fault, causing frustration to Mr X. It did not take any action until October when Mr X made a formal complaint. The Council visited again and noted no noise or waste issues. But again, it is not clear if it closed the case or if it remained open. I have not seen any records to show if the Council assessed the severity of the alleged ASB alongside any potential vulnerabilities/risk and the impact on Mr X, or if it considered any other avenues to gather evidence. It may have decided not to pursue any of these, but it needed to record its reasons why and inform Mr X of its decisions at the time. I have not seen evidence it did this.
40. The lack of record keeping around the ASB side is fault, causing Mr X frustration as it is not clear if it did a properly considered investigation. I cannot say had the Council put its mind to these considerations, if it is likely to have changed the outcome, but this also raises some uncertainty to Mr X.
41. It also gave him conflicting information. Planning told Mr X that ASB was outside its remit and referred it to the ASB team, but the ASB team told Mr X Planning was primarily dealing with it. It was not clear who was taking ownership of the specific ASB issues impacting on Mr X. This is fault, causing Mr X confusion.

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Action

42. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
43. Within one month of the final decision:
• Apologise to Mr X for his uncertainty and frustration caused by the faults identified (in line with our guidance on making an effective apology).
44. Within two months of the decision:
• The Council should send written reminders to relevant staff that when investigating reports of anti-social behaviour, officers should record their rationale behind any decisions and actions taken or not taken, including when updating complainants about the progress or closure of their cases.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed to the recommendations to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman