Summary: Ms X complained about the Council’s delay in protecting her amenity after her neighbour opened a day care nursery without seeking planning approval. We found fault causing an injustice to Ms X, which the Council agreed to remedy.

The complaint

1. Ms X complained about the Council’s delay in protecting her amenity after her neighbour changed the use of their home to a day care nursery.
2. Ms X said she that the use affected her because:
• of loss of privacy, as visitors queued outside windows in her home;
• her access drive was often blocked during drop-off and collection times;
• of constant daytime noise, which made it very difficult for her to work at home.

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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. 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

5. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and to my enquiries. I also considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Ms X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity, including noise and loss of privacy.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
12. Planning and listed building consent applications should be made within statutory time limits. The time limits are:
• 13 weeks for major developments;
• 8 weeks for all other types of development; and
• 16 weeks for development that require an Environmental Impact Assessment.
13. If a decision is not made within the time limit, the applicant can appeal to the Planning Inspectorate. This type of appeal is known as a ‘non-determination’ appeal.

What happened

14. Ms X said the change of use happened in January 2020. She reported it to the Council.
15. A planning enforcement officer visited the site in early March 2020 and advised the neighbour they needed to apply for planning permission to change the use of the house to include the use as a day care nursey.
16. The Council received a planning application, which was validated in June 2020. The Council said there was a delay in visiting the site caused by COVID-19 restrictions.
17. There was a site visit in October 2020, which was followed by a letter in November from the applicant’s agent relating to details about electric vehicle charging points, which had been requested by the County Council.
18. In March 2021, the Council responded to a request for an update from Ms X. In May 2021, the Council informed Ms X that the case had been transferred to another officer due to work pressures.
19. In June 2021, the Council asked the applicant for a noise report and details for cycle and scooter parking. This information was received, and the decision was refused at the end of August 2021.
20. The matter was referred back to planning enforcement officers, who served an enforcement notice in October 2021, requiring the neighbour to stop the unlawful notice within one month.
21. Ms X said the neighbour stopped using their home as a nursey in January 2022.
22. The Council accepted there was some delay in dealing with this application, and explained it was caused by a combination of COVID-19 related issues, which caused a backlog of cases, and staff shortages. The Council explained it had already begun a review into the service, which it said should be completed by the autumn, this year.
23. I have asked the Council to report my finding and recommendations to the relevant scrutiny committee, so that it may have oversight of what has happened, as well as what will happen to avoid similar delays in future. I did not ask the Council to report back to us with the outcome of its service review. This is because judgements about resource provision are a matter for the Council to decide.

My findings

24. From beginning to end, it took two years from first complaint to resolution. We recognise the enormous pressure that was placed on all local authorities by the COVID-19 pandemic.
25. Despite the pressures on the Council, the delays here are excessive. Progress was slow throughout consideration of the planning application. The most delay is during the seven months between October 2020 and May 2021, when there is little evidence of activity to progress the case. Once the case was reassigned to a new officer in May 2021, matters improved significantly, leading to a decision in August, and an enforcement notice in October.
26. There was work to be done during this seven month period, but it did not need this amount of time to complete. The Council was aware that Ms X’s amenity was being affected by the unlawful use and should have acted with more urgency. Overall, I assess the period of delay to be six months. The delay is fault, and I recommended a remedy for the injustice it caused Ms X. The Council accepted my recommendations.

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Agreed action

27. To recommend the injustice caused by the fault I have found, the Council has agreed to:
• apologise to Ms X for the injustice caused by the delay;
• pay Ms X £150 for her time and trouble in bringing her complaint to our attention;
• pay Ms X £600 to recognise the impact the delay had on her amenities.
28. The remedy for Ms X should be carried out within one month from the date of our final decision.
29. To avoid injustice caused by similar fault in future, the Council agreed to:
• complete its service review to ensure it is adequately resourced to fulfil its functions; and
• report my findings and the outcome of its review to the Council’s relevant scrutiny committee.
30. The Council should, within three months, confirm that it has reported my findings to the relevant scrutiny committee.
31. The Council will inform the Ombudsman when it completes each of these remedies and provide us with evidence that it has done so.

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Final decision

32. I found fault causing an injustice. I completed my investigation if the Council accepts my findings and recommendations.

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Investigator's decision on behalf of the Ombudsman