Summary: Mr X complained about the Council’s recent decision relating to a retrospective investigation, and its earlier decision not to take enforcement action in relation to a change of use of a building. Mr X said the use of the building causes noise disturbance. We did not investigate further as it is unlikely to result in a finding of fault, a remedy for an injustice to Mr X or any other meaningful outcome.

The complaint

1. Mr X complained about the Council’s planning and enforcement decisions relating to a warehouse that had been used for industrial purposes.
2. Mr X also said that when it made its planning decisions, the Council had ignored the fact that no permission had been granted for a change of use of the building.
3. Mr X said that he is affected by noise from the site.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot show that any alleged fault has caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I read our earlier decision relating to Mr X’s complaint to us about planning issues on the site that happened in 2018.
6. I gave Mr 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.
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 uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ uses, which means a use that is ‘of its own kind’ or ‘unique’.
12. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
13. 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.

What happened

14. In 2018 Mr X complained to us about development on the site. His complaint included an allegation that the Council had failed to control an unlawful change of use. Our decision on that complaint shows the investigator took account of Mr X’s allegation about a change of use, the Council’s response and decision (which was that enforcement action was not justified) and found no fault in the way the Council made its decision.
15. The Council did pursue a breach of planning control relating to an extraction unit, which led to the submission of a retrospective application and to Mr X’s current complaint.
16. The Council did serve an enforcement notice, and the developer did initiate an appeal, but more recently, they submitted a retrospective planning application to seek approval for the extraction unit.
17. The Council’s planning case officer considered the retrospective application and wrote a report, which included:
• a description of the proposal and site;
• a summary of relevant planning history, including enforcement action;
• comments from Mr X and other consultees, including an independent specialist acoustician and Council environmental health officers;
• details of policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the principle of development and the impact on the character of the area on residential amenity; and
• the officer’s recommendation to approve the application, subject to planning conditions.

My findings

18. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
19. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
20. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
21. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
22. I should not investigate this complaint further, and my reasons are as follows:
• We have already considered Mr X’s complaint about the change of use of the building, for which the Council had decided not to take enforcement action. We made our decision nearly three years ago and I should not re-investigate those issues or re-open our investigation now.
• The Council has recently approved the retrospective planning application after considering the plans, the planning history, comments from Mr X and others, including its own environmental health officers. I think it is unlikely that further investigation will result in a different outcome, a remedy for a significant injustice to Mr X or a finding of fault.

Final decision

23. I ended my investigation, as it is unlikely to result in a different or meaningful outcome.

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Investigator's decision on behalf of the Ombudsman