Summary: We have discontinued this investigation. Although it is not clear whether the Council properly considered the evidence about a change of use on an industrial site, this did not affect the outcome of a subsequent planning application to regularise the current use. There is therefore no evidence of an injustice to the complainant which would justify an investigation.

The complaint

1. The complainant, to whom I will refer as Mr W, says the Council has wrongly approved a retrospective planning application from a scrap yard for a change of use.

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The Ombudsman’s role and powers

2. 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)
3. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I reviewed Mr W’s correspondence with the Council, and a copy of the Council case officer’s report on its online planning portal.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Mr W lives in a block of flats. Opposite the block there is a line of railway arches, which host a number of different small business.
7. Mr W says, in approximately 2016 or 2017, a metal scrap yard began operating from one the arches, creating a noise nuisance for local residents. He and several other people complained to the Council.
8. The Council investigated and determined the site had been granted the planning use class of B8 (storage and distribution) in 1986. The Council initially decided there was no evidence of an unlawful change of use, but later became aware the scrap yard was engaging in a number of industrial processes.
9. The Council investigated further in August 2018, and the business owner accepted this was an unlawful change of use. The Council invited the owner to submit a retrospective application to change the use class to sui generis (a Latin term meaning ‘of its own class’), which is the correct class for a scrap yard.
10. In January 2019, the owner submitted an application to the Council for a change of use from B2 (general industrial) to sui generis.
11. In February, Mr W submitted an objection to the application. He said the site was creating a noise nuisance for local residents, and the noise mitigation measures proposed as part of the application were inadequate. He also said the site was contributing to fly-tipping in the area, and that a scrap yard was generally inappropriate for an essentially residential area.
12. Mr W also pointed out the Council had previously informed him the established class of use at the site was B8, not B2.
13. In May, the Council approved the application. It said the history of the site was industrial and so the scrap yard was not inappropriate, and that the proposed noise mitigation measures would help protect residential amenity.
14. On 18 June, Mr W submitted a complaint about the incorrect use class and the fact the Council had accepted the application with this error. The Council replied on 23 July. It explained, although it had previously told him the site was B8, it had since received information the site had been in use for industrial processes for at least 10 years. This meant the established lawful use class had become B2, and so there was no error in the application.
15. Mr W submitted a stage 2 complaint on 4 February 2020. The Council replied on 20 April.
16. The Council said, during its enforcement investigation, it had obtained evidence the site had been used for tyre changing and car body work for approximately 30 years. This meant the use class had changed from B8 to B2, because this work had continued for more than 10 years.
17. The Council acknowledged the evidence for this had been supplied by the current site owner. It explained it would normally seek evidence from a wider variety of sources before accepting an established change of us. However, the Council said it had concluded that, regardless of the previous use, a change to sui generis (the scrap yard) had now occurred, and that an invitation to submit a retrospective application was the appropriate next step.
18. The Council noted also there had been an investigation of the site as a potential noise nuisance by its environmental health department, but this had been closed because it could not establish the noise was coming from the scrap yard. However, the Council invited Mr W to raise the issue again with the environmental health department, if he felt there had been a change in the situation.
19. Mr W submitted his complaint to the Ombudsman on 14 July.

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Legislative background

20. The Town and Country Planning Act 1990 says planning permission is needed to carry out development. Development includes carrying out building works (demolition, building and structural alterations or additions) and material changes to the of use of land or a building.
21. The Town and Country Planning (Use Classes) Order 1987 puts uses of land and buildings into various categories known as 'Use Classes'.
22. A change of use of land or buildings requires planning permission if it constitutes a material change of use. There is no statutory definition of ‘material change of use’; however, it is linked to the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree and this will be determined on the individual merits of a case.
23. Planning authorities may take enforcement action where there has been a breach of planning control. The Act sets out the time limits within which councils can take enforcement action. Development becomes immune from enforcement if no action is taken:
• within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out without planning permission of operational development (building, engineering, mining or other operations) in, on, over or under land;
• within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house; or
• within ten years, for any other breach of planning control.

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Analysis

24. The Ombudsman’s role is to review the Council’s adherence to procedure when making decisions. We do not make our own decision on the merits of a planning application, but rather ensure the Council has made its own decision properly, by taking account of all relevant factors and giving clear and cogent reasons for its decision.
25. A failure to make its decision properly is what we term ‘administrative fault’. However, if we find there has been fault, we must also establish whether this has made had a significant impact on the person making a complaint, which we term ‘injustice’.
26. Mr W’s complaint is about the discrepancy between the planning application, and what the Council had previously told him was the established use class for the site. The Council does not dispute it told Mr W the class was B8 (storage and distribution); however, it says it subsequently received evidence which showed the site had in fact defaulted to B2 (light industrial), because it had been used in this manner – without enforcement – for more than 10 years.
27. Mr W says the Council has not provided copies of this evidence, despite his request. We asked the Council for further information on this point, and it explained the officer who had dealt with the matter in 2018 had now left its service, and it could not locate a copy of the email containing the relevant evidence.
28. Although we expect the Council to keep comprehensive records of its decision-making, I am conscious approximately two years had passed by the time we made this request. The Ombudsman’s own data retention policy says we should keep information only for 12 months, and so on the evidence available to me, I cannot say whether it is fault the Council no longer has a record of this information.
29. Either way, however, I do not consider this matter could be said to have affected the outcome here. The report of the case officer dealing with the site’s planning application says:

Policy DM17 of the Managing Development document (2013) seeks to safeguard existing industrial land and to protect sites currently providing industrial employment floor space (B1c, B2 and B8 Use Classes). The proposal is for a Sui Generis scrap metal yard and is therefore considered appropriate given the industrial history of the site … The use of the site for industrial related purposes is generally consistent with the industrial nature of the surrounding area and is therefore acceptable in principle.

30. The case officer recommended approval, simply because they considered the site generally suitable for a sui generis scrap yard; not because the previous use class meant the Council should accept a scrap yard there. Therefore, there is no reason to think the case officer would have made a different recommendation if the application had been to change from B8 to sui generis, even if this was in fact the correct use class.
31. This being the case, regardless of whether there was fault in the Council’s acceptance the site had changed to B2, I cannot say this has caused Mr W an injustice.
32. I appreciate Mr W does not agree the site is suitable for a scrap yard. This is, however, a matter of professional judgement for the Council, and not for me to say.
33. I do note Mr W raised several other points about the site as part of his objection to the planning application. The Ombudsman could potentially investigate how the case officer considered these factors as part of the planning application, but Mr W would first need to raise this as a formal complaint to the Council. The complaint Mr W has made is solely about the use class issue, and so this is the only point I may consider here.
34. Mr W has told me the Council is now in the process of investigating further whether there is a potential noise nuisance arising from the site. Such investigations are governed by the Environmental Protection Act, rather than planning legislation, so the fact the site has planning permission does not mean the Council cannot enforce against a noise nuisance.
35. If Mr W remains dissatisfied with the outcome of the current investigation, this is something the Ombudsman may be able to investigate separately. However, again, he would need to first make a formal complaint to the Council about it.

Summary

36. On the evidence available to me, I cannot say whether there was fault by the Council in accepting an established B2 use; nor whether it was fault it has not kept a record explaining this decision.
37. However, I am satisfied this has not affected the outcome of the planning application. As there is no evidence this has caused an injustice, it would be disproportionate to continue my investigation here.

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Final decision

38. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman