Summary: Mr B complains the Council has not dealt properly with a planning application for the change of use of a commercial property next to his home and alleged breach of licencing conditions. The Council was not at fault.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains the Council did not properly deal with a planning application for the change of use of a commercial property next to his home or alleged breach of licencing conditions because:
• It did not properly consider his objections and on-material planning considerations were used to support the application when it was decided.
• It did not deal properly with a planning condition for soundproofing.
• The premises have repeatedly overrun its licenced hours.
• It did not deal with his complaint properly.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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)
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

6. I have considered documents provided by the Council, and planning documents from the Council’s website. I have also spoken to Mr B about his complaint.
7. I have written to Mr B and the Council with my draft decision and considered their comments.
8. I have exercised discretion to investigate Mr B’s complaint because he first complained to the Council shortly after the planning application was decided in July 2018.

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What I found

What happened

The planning application

9. A planning application for the change of use of business premises next door to Mr B’s home was submitted to the Council.
10. Mr B objected to the planning application. The Council granted planning permission and subsequently a licencing application in relation to the premises complained about.

Mr B’s Complaint

11. In July 2018, Mr B complained to the Council about how it dealt with the planning application including that it did not take his objections properly into account, the behaviour of the planning committee and licencing matters.
12. The Council responded to Mr B at stage one of its complaint procedure. It did not uphold Mr B’s complaint and said its licencing committee was due to consider Mr B’s objections to a licencing application shortly.
13. The new business began trading in August 2018. Mr B complained to the Ombudsman in August 2019. This complaint had not been fully through the Council’s complaint procedure, so the Council treated this as a stage two complaint and responded. It did not uphold Mr B’s complaint.
14. Mr B complained to the Council about noise from the business in November 2019.

Analysis

15. The Ombudsman only looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
16. The case report refers to Mr B’s objections to the planning application in summary and specifically refers to the solicitor’s letter sent on his behalf. Although Mr B does not believe objections were summarised in sufficient detail, it is clear his objections were considered as part of the case report.
17. I have not seen evidence to show the Council relied on non-material planning considerations when it decided to approve planning permission. The case report summarises comments in favour of the application, but the main body of the case report and the planning committee minutes do not show the Council relied on them when making a decision. On the balance of probabilities, the Council considered material planning considerations when it made the decision. This is not fault by the Council.
18. The case report shows Council considered the impact on Mr B’s amenity as part of the planning application. The Council applied conditions to the application when it granted it, including amplified music and soundproofing. The planning committee also enhanced the recommended conditions by shortening the opening hours granted. This is not fault by the Council.
19. The Council became aware that planning conditions had been breached in November 2019 when Mr B first complained about noise. The Council is currently undertaking enforcement regarding the breach of two planning conditions regarding amplified music and soundproofing. This is not fault by the Council. If Mr B is unhappy about the outcome of the planning enforcement action, he can make another complaint to the Council and then if necessary, the Ombudsman.
20. Mr B is also unhappy about actions taken by the Council about noise nuisance since his complaint to the Council in November 2019. I have not investigated this as it is not part of his original complaint to the Council. If Mr B is unhappy about the outcome of the environmental enforcement action, he can make another complaint to the Council and then if necessary, the Ombudsman.
21. The Council says it has no evidence of licencing hours being exceeded. Without this it is unable to take any action. This is not fault by the Council. Mr B can provide this information to the Council. If he is unhappy about the outcome, he can make another complaint to the Council and then if necessary, the Ombudsman.
22. Mr B’s first complaint was made in July 2018. The Council sent a stage one response with an incorrect date. Mr B accepts the Council responded to his complaint within the correct timescale. Mr B did not complain again until August 2019. The Council responded to Mr B in September. Mr B says the Council did not reply within 10 working days. The Council says it responded within 10 working days from the time it received Mrs B’s complaint. This is not be fault by the Council.
23. Mr B also says the Council may not have looked at the correct planning decision because the stage two response included the wrong application reference. The Council’s stage two response also included the correct application reference within the body of the letter. On the balance of probabilities, the Council made a mistake with an instance of the application reference but did review the correct complaint. This is not fault by the Council.

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Final decision

24. I have not found the Council was at fault. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman