Summary: We will not investigate Mr X’s complaint about the Council’s 2015 decision to grant a change of use permission for a property across the road from his house. The complaint is late and there is no good reason to investigate it now. We also cannot achieve the outcomes Mr X seeks from his complaint.

The complaint

1. Mr X lives on the same road as a former residential property. The Council granted a ‘change of use’ permission for the property to be converted to a children’s nursery in 2015. Mr X complains the Council:
1. failed to apply its policy on loss of residential accommodation when granting the change of use permission in 2015;
2. failed to apply other policies, designed to ensure the maintenance of a good standard of residential amenity, to later applications for the same property.
2. Mr X says the noise from the nursery prevents him from using his garden and property as he did before. He says it is very difficult to sit quietly in the garden. Mr X says on some evenings there are queues of traffic waiting to enter the site to pick up children. He believes the nursery has reduced the market value of his property by up to 20 percent.
3. Mr X says he recognises no planning decision will likely be reversed but wants:
• compensation for the loss of his property value;
• strict covenants on the number of children attending the nursery;
• limits on the hours and locations allowed for play reintroduced;
• any further expansion on the site prevented.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

7. I considered information from Mr X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

8. We expect complainants to bring their complaints to us within 12 months of them becoming aware of the matters complained of. Otherwise, the complaint is late. We have discretion to investigate late complaints but will only do so if we consider there is good reason to do so.
9. The Council granted the change of use permission for the property to become a nursery in 2015. Mr X complained to the Council in 2022 that during the planning process officers had not applied their policy on loss of existing residential accommodation, policy H5. The Council agrees with Mr X that officers did not specifically refer to the H5 policy as part of the decision.
10. After 2015, the owner of the nursery has made various planning applications for the premises from 2018 onwards. The last permission the Council granted at the site was in autumn 2020. The Council refused further applications from later in 2020 and 2021, so those Council decisions could not have affected Mr X.
11. Mr X complained to us about the planning matters relating to the nursery in October 2022. By this time, he was aware of all the permissions granted by the Council between 2015 and autumn 2020. This means his complaint is late.
12. I have considered whether there is good reason to investigate these late complaints. I note Mr X says he only discovered the H5 policy in 2022 when the Council used it to refuse another permission for a different development. But Mr X’s unfamiliarity until 2022 with the planning policy the Council did not apply to the 2015 application is not a good reason for us to determine the complaint is in time and investigate it. I say this because complainants do not need to know what the specific fault committed by a council is when bringing their complaint. If Mr X believed the Council’s decisions to grant the permissions were wrong and that the planning outcomes caused him an injustice, he should have complained to the Council and then to us within 12 months. The planning documents show Mr X has been aware of the planning matters at the nursery and has lodged objections, including as part of an earlier Inspectorate appeal. This means he could have complained about each decision to grant permission at the time.
13. The 2021 application is currently the subject of an appeal to the Planning Inspectorate. We cannot interfere in the Inspectorate’s process and cannot investigate it. The Council refused the application, leading to the applicant appealing to the Inspectorate. So the planning decision on this application is no longer in the hands of the Council. If Mr X disagrees with the Planning Inspectorate’s future decision, that would not be a complaint about a Council decision, so would be outside our jurisdiction. We do not have powers to investigate Planning Inspectorate decisions.
14. We also cannot achieve the outcomes Mr X wants from his complaint. Mr X accepts none of the granted planning permissions for the nursery are likely to be revoked. But he then seeks the reintroduction of limits on the hours and locations allowed for play at the nursery. This would require an alteration to the existing planning permissions and would amount to a partial revocation of the terms of granted permissions. We cannot order councils to change the terms of granted permissions.
15. Mr X also wants a covenant to limit the number of children attending the nursery. A covenant is an agreement between named parties and requires their mutual consent. It cannot be imposed on an unwilling party. We cannot order councils to propose a covenant. Even if the Council suggested a covenant to the nursery’s owners, it could not force them to sign it because mutual agreement is required.
16. Mr X wants the further expansion of the site to be prevented. Councils acting as local planning authorities cannot stop people submitting planning applications seeking to expand or further develop sites. We cannot order the Council to ignore or automatically reject applications from the nursery site for its further expansion. Councils are required to consider all valid planning applications they receive on their own individual facts and merits.
17. Mr X also wants compensation for the loss of his property value. Officers were required to consider amenity harm issues when making their planning decisions. But there was no duty on the Council as the local planning authority to consider any claimed impact on the value of Mr X’s property. Impact on the value of existing properties is not a material issue for the planning process.
18. We cannot achieve the outcomes Mr X seeks from his complaint, which is a further reason why we will not investigate.

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Final decision

19. We will not investigate Mr X’s complaint because:
• the complaint is late and there is no good reason for us to investigate it now; and
• we cannot achieve the outcomes Mr X seeks from his complaint.

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Investigator's decision on behalf of the Ombudsman