Summary: Mrs X complained about the Council’s decision to change the building to residential use. We ended our investigation as it was unlikely to result in a finding of significant fault or injustice.

The complaint

1. Mrs X complained about the Council’s decision to allow her neighbour’s application to change the use of a building to residential use. Mrs X fears the building, like others owned by the neighbour, will be used as holiday lets. Mrs X said the tenants are often in large groups, sometimes renting several properties.
2. Mrs X said she is affected by:
• extra traffic on the narrow access road; and
• noise from parties.

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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’. 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, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

4. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including Planning Inspectors’ decisions, site plans and case officer reports.
5. I gave Mrs X and the Council now an opportunity to comment on a draft of this decision and took account of the comments I received before making a final decision.

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What I found

6. Not all developments or changes of use require planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
7. Some permitted development proposals require an application so the Council can decide whether it can or should control certain parts of the development, such as design and materials or access to the highway. These applications are known as ‘prior notification’ applications.
8. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

9. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
10. Planning uses of land or ‘use classes’ are set out in regulations. The general use classes are:
• Class A – shops and services;
• Class B – business and industrial;
• Class C – residential; dwellings, hotels and hostels;
• Class D - non-residential institutions.
11. The classes are divided into general classes, from A to D, and are further subdivided within each class to more specific uses, including:
• Class A5 – hot food and takeaway;
• Class B8 – storage and distribution;
• Class C3 – dwelling as principal or secondary residence;
• Class D2 – entertainment or leisure.
12. Although local guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan. These distances are generally considered acceptable to protect privacy and disturbance.
13. In addition to planning controls, councils have powers under environmental protection legislation to control noise nuisance caused by individuals.

Background

14. Several years ago, Mrs X moved to a remote rural area. Access to her home is via a long, narrow lane. There are other buildings around her, many of which are owned by a business (the developer) which lets them for holiday use.
15. When Mrs X bought her home, she understood that the barn nearest to her (the barn) would become permanent residential properties, not holiday lets. Mrs X said that holiday makers, often in large groups, cause disturbance through noise and increased traffic on the narrow lane.
16. There is a long and complicated planning history relating to the site, which includes appeal decisions by the Planning Inspectorate.
17. Recently, the developer submitted a prior notification permitted development application to change the use of the barn from B8 storage to C3 residential.
18. Mrs X’s house is 31 metres from the barn. The barn is closer to an annex Mrs X owns which is 24 metres from the barn. A planning case officer visited the site and placed a site notice on the entrance gate. The officer said the notice was facing outwards, towards the lane, so it could be seen when the gate was open.
19. The Council received comments from the public, including from Mrs X. The concerns included:
• the location of the site notice;
• the proposal was not eligible for this type of permitted development;
• the alleged previous use (B8 storage) was not lawfully established;
• the impact from noise and disturbance; and
• parking, traffic generation and highways issues.
20. The environmental services said it was dealing with an allegation of noise nuisance but had no reason to object to the application.
21. The highways authority said the local road network was poor, but it would be impossible to demonstrate a significant intensification of vehicle movements from the change from storage to residential uses.
22. The case officer wrote a report setting out his views on the main issues. The officer noted concerns about whether the existing lawful use was B8 storage but referred to a number of statutory declarations provided by the applicant. The officer took the view that the proposal satisfied the permitted development criteria set out in regulations, so no prior approval was required. This decision meant that the change of use from storage to residential use was lawful.
23. The statutory declarations were not published on the Council’s website. The Council accepted this was in error and explained that it probably happened because statutory declarations are normally connected with enforcement investigations, which are confidential, rather than planning application matters, which are mostly open to public view. The Council said it would remind officers of its obligations relating to publishing material relevant to planning applications. It will also correct the record by publishing the declarations on its website with the other planning documents.
24. The developer wanted to add windows and doors to the barn, following the change of use. They submitted a planning application which was considered by the planning committee. The committee listened to concerns from residents about the holiday use of the barn and the impacts on neighbours and approved the application subject to a condition requiring the barn only be used as a single private dwelling for use by a single household as its sole or main residence.
25. Mrs X said she was caused stress, inconvenience and considerable legal costs by the Council’s mishandling of the matter. She would like us to:
• revoke the Council’s decision which allowed the change of use; and
• get the Council to accept its mistake and review its processes.

Findings

26. Before we continue an investigation, we need to be satisfied that we can find evidence of an injustice to the complainant that we can remedy. In this case, I do not consider that further investigation will lead to any meaningful outcome, and my reasons are as follows:
• I think it is unlikely I would be able to recommend a remedy for the impact the change of use of the barn will have on Mrs X. This is because the distance between her property and the barn is more than is usually required to ensure adequate space between dwellings.
• We have no power to revoke a planning decision. Only the courts can do this.
• Mrs X was concerned about the use of the barn as a holiday let, but the Council’s recent approval restricts use to the sole or main residence of a single household.
• We only recommend repayment of legal costs in exceptional circumstances, usually when the individual has no option other than to seek legal representation or advice. For example, we might recommend costs where, because of fault, an individual was summoned to attend court, but the action stopped before attendance at the hearing, where costs might have been claimed. We are a free service and most complainants come directly to us without professional representation. We can seek legal advice ourselves if we feel it is necessary for our investigations.
• Though the Council had no good reason for its failure to publish the statutory declarations on its website, it has since acknowledged it should have done so and will correct the record. Further investigation is unlikely to result in a further recommendation or remedy.

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Final decision

27. I ended my investigation, as further investigation was unlikely to achieve a meaningful outcome or result in a finding of significant fault or injustice.

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Investigator's decision on behalf of the Ombudsman