Vale of White Horse District Council (21 006 970)

Category : Planning > Other

Decision : Not upheld

Decision date : 18 Mar 2022

The Ombudsman's final decision:

Summary: There was no fault in the Council’s handling of a planning and environmental health matter concerning a village shop and café. The Council did not intend to prevent the café serving hot food and so it is not fault that the planning permission allows this. The Council has also given adequate reasons why it does not consider the café is causing a statutory odour nuisance. For this reason, we have completed our investigation.

The complaint

  1. I will refer to the complainant as Mr W.
  2. Mr W complains the Council approved a change of use application for a shop near his home to become a café, which means he now suffers an odour nuisance, and causes problem parking nearby.
  3. Mr W also complains about the café’s hygiene, drainage arrangements, and fire safety.

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What I have investigated

  1. I have investigated the matter described in paragraph 2. I have not investigated the matters described in paragraph 3, for reasons I will set out at the end of this decision statement.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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 may decide not to continue with an investigation if we decide any fault has not caused injustice to the person who complained (Local Government Act 1974, section 24A(6))
  3. If we are satisfied with a council’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

  1. I reviewed Mr W’s correspondence with the Council, the Council’s case officer’s report and formal decision notice, and the Council’s response to my enquiries.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. The following chronology is intended to give an overview of the key facts relevant to this complaint. It is not intended to provide a detailed, comprehensive account of everything which happened.
  2. Mr W lives on a small housing estate which was built several years ago. As part of the planning permission for the estate, the developer agreed to construct a small ‘village shop’ for local residents.
  3. In 2015, the shop also began to offer a range of snacks and hot drinks. This is regarded as a change of use in planning terms, for which the operators had not obtained permission.
  4. In 2019, the operators submitted a retrospective planning application to the Council, to regularise the change of use (from ‘A1’ to ‘mixed A1/A3’ use). Mr W says he and other neighbours did not object to the application, on the understanding the café would only sell cold food.
  5. After considering the application, the Council granted it, subject to several conditions. Condition no.2 said:

“The premises shall be used only as that described in this permission and for no other purposes in Class A3 … In the interest of protecting neighbour amenity from odour/noise”

  1. The Council’s decision was signed off, under delegated powers, by its Head of Planning. I will refer to this person as Officer K.
  2. In early 2021, Mr W contacted the Council to say the café was now selling hot, fried food, which was causing an odour nuisance to the surrounding properties, including his own. He also raised what he considered to be issues with food hygiene, drainage and fire safety at the café.
  3. The Council investigated whether the café was in breach of its planning permission by selling hot food. However, it concluded there was nothing in the 2019 permission which prevented it from doing so, and so nothing for it to enforce against.
  4. The Council also investigated the odour as a possible statutory nuisance. It asked Mr W to keep a diary of the ‘odour events’ over a period of several weeks. Mr W completed his diary and submitted it, but the Council decided the events were too infrequent to be considered a statutory nuisance.
  5. In April and May 2021, Mr W wrote to the Council raising concerns about how it handled these matters. In particular, he commented that the 2019 planning permission had been wrongly worded, frustrating the Council’s intent to prevent odour nuisance to local residents.
  6. The Council decided to treat Mr W's correspondence as a stage 1 complaint, and Officer K formally replied to him on 3 June. He acknowledged Mr W’s dissatisfaction with the wording of the planning permission, but said:

“The purpose of condition no.2 was to ensure that the unit could not become another use within Class A3, such as a restaurant, which may have very different impacts on the local area (i.e. late nights, strong food odours). The purpose of the condition is not, and was not, to prevent the sale of any hot food. You would expect tea rooms to provide hot snacks. However, I accept that the officer’s report and condition imposed should have been worded better to make this clear. We have recently undertaken some officer training on the use and wording of conditions, which will help in the consideration of other applications.”

  1. Officer K explained its environmental health team had not established a statutory odour nuisance, and that the Council had identified no concerns with the other issues Mr W had raised, such as food hygiene or drainage. He also explained there were no parking restrictions on the road in the estate, meaning the Council could not prevent people parking cars there.
  2. After receiving further correspondence from Mr W, the Council provided a stage 2 response on 23 June.
  3. It elaborated on its comments about parking, explaining that, while there were no parking restrictions in the area around the café, it would still expect drivers to adhere to the Highway Code in decide where and how to park. However, enforcement of this was a matter for the local highways authority (Oxfordshire County Council) or the police.
  4. The Council reiterated it had not intended to prevent the café selling hot food. Although the planning permission did not allow the café to operate as a food takeaway, the Government had relaxed rules because of the COVID-19 pandemic, and this allowed the café to operate an element of takeaway service.
  5. It explained that planning rules were not designed to prevent all noise and odour, but to restrict them to acceptable levels. It acknowledged this was a subjective judgement, but said, in its professional judgement, the small scale of the operation and the limited range of food it offered meant there was not an unacceptable level of odour nuisance. The Council also confirmed again its environmental health team did not consider there was a statutory nuisance.
  6. On 10 August, Mr W referred his complaint to the Ombudsman. He complained the Council had failed to include the planning case officer’s “considerations” in the conditions, and while it had now acknowledged this, said Officer K should have checked this at the time of signing. He also complained Officer K had responded to his stage 1 complaint. Mr W asked the Ombudsman to stop the café selling hot food.

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Legislative background

Planning permission

  1. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
  2. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’. Planning permission is usually required to change a use from one class to another.
  3. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
  4. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Statutory nuisance

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
  2. Typical things which may be a statutory nuisance include:
  • noise from premises or vehicles, equipment or machinery in the street
  • smoke from premises
  • smells from industry, trade or business premises
  • artificial light from premises
  • insect infestations from industrial, trade or business premises
  • accumulation of deposits on premises
  1. For the issue to count as a statutory nuisance, it 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.
  1. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
  2. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
  3. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.

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Analysis

  1. Mr W complains the Council misworded the 2019 planning permission, allowing the change of use to mixed A1/A3 class, which means it cannot prevent the café selling hot food, as he understands was its intent.
  2. However, I am satisfied this was not, in fact, the Council’s intent. In both its stage 1 and stage 2 complaint responses, the Council explained the purpose of the condition was to prevent the café evolving into another type of A3 use, such as a late-night restaurant, with the attendant consequences for local amenity. The Council has stated clearly it was not seeking to prevent the café serving hot food.
  3. I do note the Council acknowledges it could have used a clearer wording for the condition in the planning permission. I asked the Council to elaborate on this. In response, it said:

“[When] interpreting what a tearoom would offer its customers, it is reasonable that a member of the public would expect it to provide hot and cold beverages and hot and cold food/snacks, for example, hot tea cakes, toasties, sausage rolls. In addition, I believe the case officer’s understanding and interpretation of the Use Class Order could have been explained clearer in the report. However, I do not consider this was deliberately misleading. The officer relied upon technical planning terms (A1 and A3) without fully explaining this in their report. The officer’s assessment included an understanding of the application plans, how the unit is operating and how the provision of hot food is limited by the size of the unit and the kitchen facilities. We are aware from our site visits that there is a coffee machine, microwave and a hob. We would therefore expect hot and cold drinks and hot and cold food, appropriate for a café/tearoom, to be purchased and taken away and do not consider this results in any planning harm. It is not and we would not expect it to be operating as a restaurant selling full meals …

“Our intention was not to allow the sole use of the property for the consumption of hot food, and we treat hot food and hot snacks as the same thing, recognising that a café/tearoom range of hot food/snacks offered is different to that expected and offered in a restaurant.”

  1. On this basis, I am satisfied the Council’s ‘admission’ was that the case officer’s report and decision notice did not articulate its intent clearly to the reader. It was not that the Council had intended to prevent something, which it was then unable to do because of poor wording, as Mr W inferred.
  2. Mr W says the local parish council (which, as I understand it, owns the leasehold for the café premises) had assured him the café would only serve cold food, when it applied for the change of use in 2019. This is why he did not object to the application at the time.
  3. I appreciate why Mr W would be dissatisfied with this outcome, if this was his understanding. However, there is nothing to suggest the Council had misled the parish council into believing it could, or would, impose such a restriction; and so it appears this may have been a misunderstanding by the parish council itself. We have no jurisdiction over parish councils and so this is not a point I can take any further.
  4. The Council has also investigated the odour as a possible statutory nuisance. It asked Mr W to complete an odour diary, but upon reviewing his submission, concluded the events were too infrequent to constitute a statutory nuisance.
  5. Mr W has questioned this, saying only one instance of odour should be sufficient for enforcement, given what he considers to be the Council’s error in the planning permission.
  6. However, and notwithstanding that I do not agree there was an ‘error’ in the planning permission, this is a misconception. The statutory nuisance regime is entirely separate from planning and planning enforcement, and works to its own standards, set out in the Environmental Protection Act 1990. Even if there was a substantive fault in the wording of the planning permission, this would not mean the odour necessarily reached the level of a statutory nuisance, against which the Council could enforce under the Environmental Protection Act.
  7. And I also see no reason to criticise the Council’s decision on the statutory nuisance issue here. It gathered evidence and gave a reasoned, professional view for why it would take no further action. This was a decision it was entitled to take.
  8. I understand Mr W complains the Council did not visit his property as part of this process, but there was no requirement for it do so. There are several factors which officers must consider in determining a statutory nuisance, including frequency and duration; and if officers were satisfied the odour was too infrequent to be a statutory nuisance, it is difficult to see what difference undertaking a site visit could make to this decision.
  9. In both planning and environmental health respects, these matters are fundamentally those of professional judgement. The Ombudsman’s role is to review councils’ administration of their functions. We can criticise councils if they (for example) do not follow an appropriate procedure, fail to take account of relevant information, or do not properly explain a decision. But we do not offer a right of appeal against their decisions; we cannot overturn them, or direct councils to act against the professional judgement of their officers, where there is no evidence of administrative fault in their actions. We do not uphold complaints simply because someone disagrees with a council decision.
  10. While the Council has been self-critical with respect to the wording of the planning condition, it has explained it simply meant its intent could have been clearer. As I say, I am satisfied it did not intend to prevent the café serving hot food, and this was a decision it was entitled to make. There can therefore be no fault in its decision there is no breach of planning permission to enforce against here.
  11. This being the case, I consider the Council’s criticism of the wording of the report and decision notice to be minor and inconsequential, and I will not make a finding of fault just for this reason.
  12. Mr W also complains the planning permission has led to inconsiderate parking on the road around the café, causing difficulty of access.
  13. The planning case officer considered the potential for traffic generation as part of the 2019 application. They wrote:

“The premise has a couple of dedicated parking spaces to the side. There is a footpath along the road which links to the rest of the village and there are two cycle stands outside the premise. Given it is primarily to serve the local village and can be accessed easily by walking and cycling, the highway officer has verbally confirmed that it is not necessary to provide additional parking for the tearoom element.”

  1. While local planning authorities should act to mitigate or prevent obviously foreseeable problems, given the small size of the café, and its main purpose of serving local residents, I do not consider there is any reason to criticise the case officer’s assessment here. It is a logical conclusion to draw on the facts of the application.
  2. This, of course, does not prevent drivers from parking inconsiderately or obstructively; but it is ultimately for individual drivers to ensure they act in accordance with the law and Highway Code. And, as the Council has said, highways enforcement is a matter for Oxfordshire County Council (as the local highways authority) or the police.
  3. Finally, Mr W has complained Officer K responded to his stage 1 complaint, despite what he considers to be Officer K’s error in signing off the planning permission in 2019.
  4. However, I do not agree there is any significant error in the planning permission – it satisfied the Council’s intent, and the only criticism which can be made is that it did not clearly explain that intent to the objective reader. It follows, therefore, I see no conflict in Officer K being asked to respond to the stage 1 complaint.

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Final decision

  1. I have completed my investigation with a finding of no fault.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr W’s complaints about food hygiene, drainage or fire safety. This is because none of these issues affects him personally, and therefore cannot represent an injustice to him.

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Investigator's decision on behalf of the Ombudsman

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