Summary: X complained about the Council’s retrospective planning application relating to a hot food takeaway café near their home and an enforcement investigation about an illuminated sign and subdivision of a building. We found no fault in the way the Council made its decision on the retrospective planning application and decided not to investigate earlier or ongoing enforcement matters because they were unlikely to achieve a different or meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision to approve a retrospective application for a hot food take away business near X’s home. X said odour and noise from the business affected their amenity.
3. X also complained about the Council’s failure to take enforcement action, including an allegation about an unauthorised illuminated sign outside the business premises.

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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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. 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, or
• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

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What I have and have not investigated

7. I have investigated the Council’s most recent planning application decision, which was for:
• a retrospective approval to change the use of a business and installation of an extraction system; and
• an enforcement investigation about an illuminated sign and the subdivision of the premises.
8. In their complaint and in their response to earlier drafts of this decision, X mentioned a previous enforcement investigation and planning controls set by other planning approvals.
9. I did not investigate these matters because:
• The most recent retrospective planning application approval supersedes any earlier approvals that might have once controlled the planning uses and developments on the site.
• The earlier enforcement investigation led to a retrospective planning application and decision to approve. The Council’s enforcement decision to invite a retrospective application was one it was entitled to make. Investigating the previous enforcement actions now will not change the outcome of the subsequent retrospective planning approval.
• Since X first contacted the Council with their first planning enforcement complaint, the Council has recruited more staff and engaged a consultant to reduce its backlog. The Council also apologised to X for the delays in 2023 and the first half of 2024. It acknowledged these were caused by staff shortages at that time. Further investigation now of delay in enforcement of this matter is unlikely to result in any further recommendation.

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How I considered this complaint

10. I read the complaint and invited X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I discussed the case with a planning manager.
11. I gave the Council and X an opportunity to comment on earlier drafts of this decision and took account of the comments I received before making this decision.

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What I found

Types of planning application

12. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can be made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
13. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed. Planning enforcement officers sometimes ask developers to submit retrospective applications where they find evidence that development is not lawful.

Planning law and guidance

14. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
15. Planning guidance and policy should not be treated as if it creates binding rules that must be followed. While councils must take account relevant policy along with other material planning considerations, it is not unusual for different policies or guidance statements to conflict with each other and fall on either side of the ‘planning balance’. It is the planning authority’s role to ‘weigh’ the different considerations and reach a judgement on the application. Because of this, complaints that councils failed to follow policy are unlikely to result in a finding of fault. It is a failure to take account of a key planning considerations that is more likely to be criticised.
16. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
17. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
18. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
19. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
20. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
21. 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.

Background

22. X lives near a cafe that sells hot food for customers to take away.
23. The Council found that there was a breach of planning control, because the use of the site for hot food takeaway service did not have planning permission. The Council invited the business to submit a retrospective planning application, which the business operator did.
24. The application was publicised, and comments were received from the public and other departments, including the Council’s environmental health officer. The environmental health officer recommended planning conditions to control hours of use and the specification, maintenance and operation of an extraction fan.
25. The planning application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• comments from neighbours and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the principle of the development, and the impact on residential amenity; and
• the officer’s recommendation to approve the application, subject to planning conditions.
26. The planning case officer noted the environmental health officer’s comments but did not consider it necessary to impose planning conditions, because:
• environmental health had existing powers that could be used to control the extraction fan; and
• given the historical use of the site and its setting, further noise or hours of use controls were not necessary or appropriate.
27. The Council approved the application and X complained about it.
28. Later, X complained about the illuminated sign and the subdivision of the premises. The Council wrote to the business inviting a planning application so any changes could be considered through the planning process, but none was received.
29. The Council’s planning manager said, in the continued absence of a response, enforcement officers would have to decide whether any further action was justified. When doing this, the Council would have to decide whether any breach of control caused significant levels of harm to justify formal action.
30. The Council provided details from its enforcement files, including dates, relating to this second planning enforcement investigation. The Council visited the site within a few days of receiving X’s complaint. A week later, it invited a retrospective application so the illuminated sign and sub-division of premises could be considered through the planning process. There was no response and so a month later, the Council wrote again requesting a planning application. To date, no application had been received and the Council now needed to decide what enforcement action, if any, it should take.
31. The planning manager also said:
• The Council had accepted there had been delay in responding to X’s formal complaint, but did not agree this caused X’s costs in their magistrate’s court case. This was because X’s court case happened before the Council completed its enforcement and planning application decision processes.
• The Council also did not accept there was unreasonable delay in investigating the second enforcement case, which was ongoing.
• They noted that X had been successful in securing an abatement notice, but colleagues in environmental health had found insufficient evidence to show evidence of a nuisance.

My findings

32. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
33. We should carry out proportionate investigations and are not obliged to investigate every matter that is brought to our attention. I did not investigate X’s planning enforcement complaint that led to the retrospective application or controls on hours of use from earlier approvals for the reasons set out in paragraph 9 above.
34. This decision focuses on the recent retrospective planning approval and the ongoing enforcement application about an illuminated sign and the sub-division of a building.

The current enforcement investigation

35. The Council has not yet made its planning enforcement decision on this case. I have decided not to investigate this further, because:
• The case is ongoing, and we do not know the outcome.
• Before it makes its enforcement decision, we would expect the Council to consider whether any unlawful development caused significant harm to the public. The Council has expressed its intention to do this.
• There was no evidence of delay in the early weeks of the Council’s involvement. In this time, it considered the allegation, carried out a site visit, decided an appropriate course of action and wrote to the business operator, twice.
• Several months have passed since the Council sent its reminder to the business. It is possible that further investigation might lead to a finding of fault in delay, but where we find fault in delay, the main remedy is to ask the Council to make is decision without further delay. The Council has already indicated it is preparing to make its decision, so further investigation is unlikely to lead to a meaningful outcome.
• The main impacts on amenities from the business are sound and odour from cooking and an extractor fan. These issues have already been considered in the planning application process and a decision to approve was made. The issues that remain, in my view, do not cause a significant injustice we are likely to remedy.

The retrospective planning application

36. When it made its decision on the retrospective planning application, the Council took account of the proposal, site history, planning policy, comments from residents and other officers. This is the planning application decision-making process we would expect. It was not obliged to follow the advice of any consultee or to follow any policy guidance, whether mentioned in the case officer’s report or not. Councils are expected to make proportionate planning decisions and should not be subject to hypercritical scrutiny when making their judgements. They are not obliged to set out their reasoning on every possible consideration. But it should be clear from the records, what was decided and sufficient detail, albeit briefly stated, to explain reasons for conclusions. The records I have seen satisfy these standards.
37. For these reasons I find no fault in the way the Council made its planning application decision.

Final decision

38. I decided not to continue to investigate X’s complaint about the Council’s current enforcement investigation, because it is ongoing and further investigation is unlikely to result in a meaningful outcome.
39. I found no fault in the decision-making process relating to the retrospective planning approval and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman