Summary: Mr F complains the Council gave him incorrect pre-application planning advice that he did not need to apply for planning permission for change of use of his property. The Ombudsman has found fault. The Council has agreed to apologise to Mr F, which is a suitable remedy for the injustice caused.

The complaint

1. Mr F complains the Council gave him incorrect pre-application planning advice that he did not need to apply for planning permission for change of use of his property.
2. Mr F says as a result he incurred unnecessary costs, lost rental income, had to sell the property at a loss, and he and his family suffered significant distress and anxiety.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about planning enforcement notices.
6. 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

7. I spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries.
8. I sent Mr F and the Council my draft decision and considered the comments I received.

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What I found

Pre-application planning advice

9. It is good practice for councils to offer pre planning application advice. When they do so, they should make clear the advice is merely the professional opinion of the individual officer and cannot bind any subsequent decision of the authority on a planning application. If a developer wants a definitive view on whether a proposed development needs planning permission, s/he may apply for a certificate of lawfulness of proposed development.
10. The Council offers five levels of formal, pre-application advice. For this, the applicant must submit information about their proposals and pay a fee.
11. The Council also offers free, informal advice via the telephone or a face to face meeting with a duty planning officer. The advice is not recorded. The Council's website says:

“We give general, verbal advice on the planning process and the council's planning policies on sites less than small scale major proposals. If you require site specific detailed advice, use our formal advice service.”

Change of use

12. Planning law puts the use of land and buildings into categories. Normally, someone will need planning permission to change the use from one category to another. This is because there is a material change of use of the property. Guidance issued by the government says that there is no statutory definition of ‘material change of use’. It says it is linked to the significance of a change and the impact the change has on the use of land and buildings. It says that a change in use will be determined on the individual merits of the case.
13. If a council decides there has been a material change in use at a property, and the owner/proprietor has not applied for planning permission to change the category, it can take enforcement action.
14. Residential homes (“dwellinghouses”) are in category C3. A holiday let is considered a dwellinghouse provided the occupation meets the requirements of category C3, i.e. the property is used by:
• A single person or by people to be regarded as forming a single household
• Not more than six residents living together as a single household

What happened

Background

15. Property X is a five-bedroom detached house in a residential area. Mr F purchased Property X in June 2017 and rented it out on a long term lease. He then decided to let it as a holiday let.
16. Mr F approached the Council to see whether his plans needed planning permission. On 30 August 2017 he met a duty planning officer, Officer 1, at the Council’s offices.
17. Mr F had not paid for formal pre-application planning advice, so the nature of this meeting was that it was informal, general advice as described on the Council’s website. There are therefore no notes of the meeting because the Council does not record this type of advice. There is a record of a subsequent email.
18. Mr F says he presented his plans and photographs and explained he wanted to run an 18-bed holiday let. He says there was a discussion about bedroom configuration, floor plans, access, parking and the possible conversion of the garage. Mr F says Officer 1 told him he did not consider planning permission for change of use would be needed, but he would consult with a senior officer and confirm by email.
19. In response to my enquiries, Officer 1 says he was shown sketch plans of the proposed development comprising an internal change of use to operate a holiday home. He does not recall any specific discussion about the numbers who would be staying. He says the discussion was around the general principles of a holiday let and that Mr F was not told the advice given as part of the duty planning service was binding.
20. Following the meeting, Officer 1 emailed Mr F. The email said:

“Following our meeting I have spoken to a senior officer who confirmed that a holiday let is considered a dwellinghouse (C3) and therefore you would not need to notify, nor gain planning permission from the council for the change of use, this would only apply if any changes were to be made to the structure of the property or, as we discussed, any future conversion of the garage.”

21. Mr F says he spent the next two months refurbishing the property at a cost of about £50,000. The first booking was for 1 December 2017.

March 2018 to May 2018

22. The Council received a complaint of noise nuisance from Property X’s neighbours. It therefore sent a planning contravention notice on 8 March 2018 to Mr F. The notice said there had been an alleged material change of use from dwellinghouse to holiday let. It asked Mr F to confirm he had planning permission, or to submit a retrospective planning application.
23. Mr F called the Council. He told Officer 2 that Officer 1 had advised he did not need planning permission. Officer 1 had since left the Council. Mr F says in the phone call Officer 2 was unprofessional and his conduct amounted to bullying. He did not call back as agreed and Mr F had to chase several times. Mr F says in a further conversation a few weeks later, Officer 2 told him the view was that planning permission was not needed. The Council has kept no records of these phone calls.
24. Officer 2 emailed Mr F on 26 March 2018. He advised Mr F to apply for planning permission for a change of use from dwellinghouse to holiday let for up to 18 people.
25. Mr F responded he would not apply for planning permission as the Council’s previous advice had said this would not be necessary. He had legally set up his holiday let business following this advice, at enormous financial and emotional cost, and now had over 50 bookings for 2018 and 2019. Mr F noted there were other holiday let properties operating in the area which had not applied for change of use and had had no enforcement action taken against them. He responded to the planning contravention notice and asked for details of the complaints that had been made.
26. Mr F asked for a meeting with the Council, which was held on 30 April 2018. The Council has not kept a record of the meeting. Mr F says he explained the measures he had taken to prevent and deal with any noise and nuisance by guests and that he had met with neighbours who had not raised any complaints with him.
27. The Council sought legal advice and decided Mr F’s use of Property X was materially different to normal activities carry on at a typical dwellinghouse and as such was a material change of use from dwellinghouse (C3) to commercial letting for more than 6 people at any one time (sui generis). It decided to take enforcement action.
28. The Council issued an enforcement notice on 16 May 2018. This required Mr F to cease using the property as an 18 bed holiday let from 29 June 2018.
29. Mr F says the notice came as a shock as he had been expecting to be in further correspondence with the Council following the meeting. He appealed against the enforcement notice, but after considering the stress caused by the matter and new complaints made by neighbours, decided to withdraw the appeal. Mr F closed down the holiday let business and cancelled 49 bookings. Mr F says this resulted in several weeks of abuse and threats of legal action from clients. He decided to sell Property X to pay off the debts from its refurbishment.
30. Mr F wrote to the Council on 31 August 2018 asking for the enforcement notice to be removed, as it was causing difficulties in selling Property X. He sold Property X in December 2018.

Mr F’s complaint

31. Mr F made a formal complaint to the Council on 11 December 2018. The Council took this straight to the final stage of its complaints procedure, as there had been previous correspondence on the issue.
32. The Council replied to the complaint on 7 March 2019. It said it was inconceivable that a planning officer would advise that an 18 bed holiday let in a residential area would not require any specific planning permission. It was therefore likely there had been some misunderstanding over the number of people likely to be staying at the property.
33. The Council said the informal advice Mr F received from Officer 1 should have formed only a small part of his considerations. It considered Mr F could have undertaken further research, which would have shown the requirement for larger let houses to seek planning permission for change of use. In response to my draft decision, Mr F said he had researched the local holiday let market extensively prior to meeting the Council.
34. The Council apologised that the August 2017 email had not explained that for a full consideration of the situation, and a guarantee of use, a certificate of lawfulness would be required. It now displayed notices to clarify the duty planning service position. The Council apologised if Mr F had found Officer 2’s approach inappropriate.
35. Mr F complained to the Ombudsman. He said he would not have started the holiday let business if the original advice in 2017 had been correct. The matter had caused him and his wife a great deal of stress and anxiety, causing him to have a breakdown and severe depression for several months. He had also lost significant amounts of money.

My findings

36. As there are no records of the August 2017 meeting, I can make no finding about whether Mr F told Officer 1 he planned an 18 bed holiday let. However, I find there was fault in the email sent after the meeting.
37. The Council’s website explains it provides free, general, verbal advice that is not site specific, but the email did not include this disclaimer. Whilst Mr F may have been aware that formal pre-application advice is not binding on the Council, because of the way the email was worded it is understandable he took it to mean he did not require planning permission. He therefore did not seek any further advice.
38. But I cannot agree with Mr F that the Council’s August 2017 email directly led to him incurring all the costs he cites. He became aware in March 2018 that planning permission was required. At this point he could have made a retrospective planning application but chose not to. Nor did he appeal the enforcement notice. Whilst I cannot say whether an application would or would not have been granted, I consider the change of use was not so extreme to make it inconceivable.
39. I therefore consider that Mr F could have done more to protect his position and alleviate his losses. Mr F chose to refurbish Property X. He then decided not to apply for planning permission or to let it in line with dwellinghouse use. Instead he decided to close the business and sell the property. These decisions do not lead directly from the faulty email. I therefore cannot say the Council can reasonably be held responsible for the costs Mr F incurred.
40. If Mr F remains of the view the Council is responsible for his losses then it is open to him to take court action against the Council. There is a procedure open to anyone to make a money claim through the courts and ultimately only the courts can decide liability.
41. Mr F has set out the details of his discussions with Officer 2 and his view he was harassing and bullying. The Council has already apologised and it is unlikely we could achieve anything more by investigating this issue further, especially as there are no written or audio recordings of the calls.
42. I have not investigated the Council’s decision there was a breach of planning control and to take enforcement action. This is because the Ombudsman cannot investigate when it was reasonable for someone to have appealed to the Planning Inspector.
43. The situation clearly caused significant distress and anxiety to Mr F and his wife, although it is not possible for me to say that it was solely the faulty email that was the cause of any mental health issues Mr F suffered.

Agreed action

44. Within a month of my final decision, the Council has agreed to apologise to Mr and Mrs F to remedy the distress caused by fault.

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Final decision

45. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman