Summary: Mrs X complained the Council permitted a planning application without considering the intended commercial use of the property and despite a pre-existing planning control. Mrs X also complained the Council’s enforcement team failed to address her concerns. We do not find fault with the Council’s planning decision or enforcement action. But, we found fault with the Council failing to follow its complaint process. The Council agreed to apologise to Mrs X.

The complaint

1. Mrs X complained the Council permitted a planning application for conversion of a residential garage into a habitable room without considering the intended commercial use of the property.
2. Mrs X also complained the Council permitted the planning application despite the planning controls preventing the adjoined garage being used for anything other than housing a vehicle. Mrs X says the Council failed to consider the concerns she raised to the planning application.
3. Mrs X says the business runs from 8am till 8pm five days a week and has clients arriving regularly. Mrs X says her residential property is now attached to a business which has impacted on their privacy and enjoyment of their property.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with an organisation’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

7. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

The Law

9. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
10. Councils can take enforcement action if they find a developer has breached planning rules. However, councils do not have to take enforcement action just because there has been a breach of planning control.
11. Government guidance says:
12. “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)
13. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost-effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
14. Council’s often invite developers to submit retrospective planning applications so the impact of the development can be properly considered.

Council complaints process

15. The Council has a two-stage complaints procedure. The Council will log and try to resolve the complaint at Stage 1 through the service area responsible.
16. If a person is dissatisfied with the Council’s response at Stage 1, or they do not receive one, they can ask the Council to consider the complaint at Stage 2. The Council service director will respond to a complaint at Stage 2 within five working days.

What happened

17. In 1991 a developer got planning permission to build Mrs X’s house and that of her adjoined neighbour. This planning permission included a condition, Condition 1, which removed the owner or occupier’s right to convert the garage to a habitable space. Condition 1 required the garage not to be used for any reason which could prevent storage of a car.
18. On 27 June 2021, Mrs X reported her neighbours to the Council for completing renovation works of the garage in contravention of Condition 1.
19. The Council opened an enforcement case on 28 June 2021, completed a site visit and spoke with Mrs X’s neighbours. Mrs X’s neighbours told the Council they were converting the garage into a home office, but Mrs X said it was to open a client facing commercial entity.
20. On 5 July 2021, the Council wrote to Mrs X’s neighbours to tell them of Condition 1. The Council said either the conversion works needed to stop or they needed to submit a retrospective planning application.
21. Mrs X’s neighbours started running their business on 13 July 2021 which Mrs X reported to the Council. The Council wrote to Mrs X’s neighbours again on 14 July 2021 giving them 14 days to make a retrospective planning application before the Council considered formal enforcement action.
22. Mrs X’s neighbours submitted a retrospective planning application on 26 July 2021 for variation of Condition 1. The planning application stated conversion of the garage was to create a habitable room to work from.
23. In August 2021, the Council told Mrs X about the retrospective planning application and invited her to comment on this application.
24. Mrs X objected to the planning application because the purpose was to run a client facing business from the conversion. Mrs X said the conversion of the property impacted on her privacy, caused noise and air pollution and increased traffic to the street. Mrs X told the Council her neighbours had completed the works to run a business and not as a habitable space.
25. In September 2021, the Council planning officer submitted their report recommending approval of the planning application. The Council officer said:
• Condition 1 prohibited use of the garage for anything other than parking.
• This planning application was specifically for removal of Condition 1 as a retrospective application as they had already converted the space to a habitable room.
• The main consideration of the planning application was whether loss of the garage caused an unacceptable harm by way of inadequate parking provision for the occupiers of the property.
• The planning application showed three cars could park on the front curtilage of the property without relying on the garage because of the hardstanding. Its Highways department had no objections to the planning application.
• This planning application seeks only to change Condition 1 to enable the habitable room to be used for any purpose that is incidental to lawful residential use. Mrs X’s objections based on the garage being used as a commercial entity would not be relevant to lawful residential use and this was a matter for the Council’s enforcement team.
26. The Council’s planning officer also liaised with both the enforcement team before approval of the planning application. Following discussions the Council approved the planning application subject to the condition that the use of the integral garage must be for purposes incidental to lawful residential use.
27. The Council contacted Mrs X’s neighbour to discuss use of the property as a commercial entity. The Council agreed with Mrs X’s neighbours they could continue to run the commercial entity until the end of 2021 before stopping. The Council confirmed with Mrs X this negotiated agreement on 11 October 2021 and advised it would monitor compliance.
28. Mrs X made a complaint to the Council on 18 October 2021 about the Council allowing the planning application and allowing her neighbours to continue to run a business from a residential property.
29. The Council provided its Stage 1 complaint response to Mrs X on 22 October 2021. The Council said:
• It would unlikely support an application from Mrs X’s neighbours for commercial use of the property in the circumstances and given the nature of the commercial entity.
• It had contacted Mrs X’s neighbours and negotiated a stop to the commercial entity by the end of 2021.
• It’s planning department had failed to consider installation of the patio doors within the planning application and admitted this was fault.
30. Mrs X sought escalation of her complaint to Stage 2 of the Council’s complaint process on 23 November 2021. Mrs X complained about the Council refusing to investigate or act on the commercial use of the property further. Mrs X said she was concerned the negotiated approach by the Council would result in the business continuing to operate.
31. Mrs X chased a response to her Stage 2 complaint on 9 December 2021, 21 December 2021 and 18 January 2022. The Council responded to advise it did not know when it would issue the Stage 2 complaint response.
32. Mrs X complained to the Local Government and Social Care Ombudsman in March 2022.
33. On 1 June 2022, the Council wrote to Mrs X to advise her the file on the enforcement matter remained open. The Council asked that Mrs X report any use of the property as a commercial entity to the Council.

Analysis

Planning application

34. Mrs X complained the Council permitted a planning application for conversion of a residential garage into a habitable room without considering the intended business use of the property.
35. Mrs X’s neighbours made a retrospective planning application to the Council to vary Condition 1. This planning application sought to approve the renovation works they completed in turning the garage into a habitable room.
36. Condition 1 was specific in that it required the garage to remain in place to enable parking a car.
37. This means the main consideration for the Council in this planning application was whether Mrs X’s neighbours’ removal of the parking space for a car, provided by the garage, caused unacceptable harm.
38. The Council’s planning department consulted with its Highways department and considered the site plans provided which showed enough space to park three cars on the hardstanding covering the front curtilage of the property. The Council has considered the relevant factors when deciding to approve the planning application.
39. Mrs X’s neighbours did not apply to the Council for permission to build or run a commercial entity from the previous garage space. The Council did not need to consider the intended purpose of the conversion. This would require Mrs X’s neighbours to make a separate planning application.
40. Mrs X also complained the Council failed to consider the concerns she raised about the planning application.
41. The Council’s planning officer’s report directly referenced Mrs X’s objections to the planning application. The Council planning officer considered Mrs X’s concerns but decided these were not applicable to the planning application made. The Council decided this because Mrs X’s concerns related to use of the former garage space as a commercial entity.
42. The Council planning officer has shown they did consider Mrs X’s concerns and set out why Mrs X’s concerns were not relevant to the planning application. The Council planning officer’s decision making is also suitable to the planning application made.
43. While the Council has admitted fault for failing to consider the patio doors as part of the planning application, I do not consider this in itself caused Mrs X a significant personal injustice. Mrs X’s complaints were specifically about the commercially entity operating from the property. Installation of the patio doors is linked to this commercial entity but existence of these doors without using the property as a commercial entity would not cause Mrs X a significant injustice.
44. The Council has already apologised to Mrs X for this fault, and I do not consider the Council need take further action address the minimal injustice caused.
45. The Council has, for the most part, considered the planning application suitably, considering the relevant factors and Mrs X’s objections. I do not find the fault by the Council in not considering the patio doors caused Mrs X a significant personal injustice.

Enforcement

46. Mrs X complained a commercial entity now operates next to her property which the Council has failed to stop.
47. Mrs X first complained to the Council on 27 June 2021. In slightly over one week from Mrs X’s first contact, the Council had logged an enforcement case, visited Mrs X’s neighbours, discovered a breaching of planning conditions and written to Mrs X’s neighbours. Within the written contact, the Council advised Mrs X’s neighbours to submit a retrospective planning application to rectify the breach.
48. The Council seeking the submission of a retrospective planning application is consistent with government guidance under the National Planning Policy Framework. In response to the Council, Mrs X’s neighbours submitted a retrospective planning application.
49. The Council acted expediently to investigate Mrs X’s concerns and took proportionate action by seeking the retrospective planning application. I do not find fault with how the Council addressed Mrs X’s concerns.
50. The Council placed Mrs X’s enforcement matter on hold while its planning department considered the planning application. I would not expect to see a Council try to take further enforcement action while awaiting the result of a planning application about the same matter.
51. The Council has shown collaboration between its planning and enforcement departments when it became clear the planning application would not address the full enforcement matters. This action resulted in the Council approaching Mrs X’s neighbours to seek a negotiation stop to the operations of the business.
52. The National Planning Policy Framework promotes using negotiation and informal action to address planning control matters. The Council’s actions prevented any delays in handling the enforcement matter and managed to bring about a stop to the business by the end of 2021. Since the Council negotiated an end to business activities it did not need to take further action.
53. The Council has again acted proportionately to address Mrs X’s concerns. The Council was entitled to reach a negotiated resolution with Mrs X’s neighbours and I do not find fault.
54. The Council has written to Mrs X to ask her to report any restarting of business practices by her neighbours. Unless Mrs X’s neighbours restart use of the converted garage as a business, there is no further action needed from the Council. I do not find fault with how the Council managed Mrs X’s enforcement case.

Complaint handling

55. In response to the Ombudsman’s enquiries, the Council has confirmed it failed to issue a Stage 2 complaint response to Mrs X. The Council failed to meet the timescales set out in its complaint policy and this is fault.
56. The Council has explained the workload of the head of its planning department prevented them from issuing a Stage 2 complaint response. The Council has already detailed the steps it has taken to reduce the workload burden on its head of service and ensure it has capacity to meet its complaint process timescales.
57. While the Council’s actions addressed the underlying issue, the failure to issue the Stage 2 complaint response to Mrs X caused her frustration and inconvenience.

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Agreed Action

58. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Mrs X for the failure to issue a Stage 2 complaint response.

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Final decision

59. There was fault leading to injustice. Since the Council accepted my recommendation, I have completed my investigation as I consider that a suitable remedy.

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Investigator's decision on behalf of the Ombudsman