Summary: X complained about the way the Council dealt with planning application and planning enforcement issues relating to their neighbour’s land. X believes that, because of the Council’s decisions, the land may now be used for commercial purposes without proper planning controls, and that this might affect their home, which is a listed building. We found fault and the Council agreed to our recommendations to deal with the injustice it caused and avoid recurrence of the same fault in future.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the way the Council dealt with planning issues relating to their neighbour’s land. X believes that, because of the Council’s decisions, the land may now be used for commercial purposes without proper planning controls.
3. X believes that the use of the land will affect their home, which is a Grade II listed building.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
7. 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

8. I read the complaint and discussed it with X’s representative. I read the Council’s response to the complaint and considered documents from its planning files, including the plans, the planning case officer’s report, enforcement site visit notes and photos, and the planning enforcement officer’s report. I discussed what happened with a planning manager.
9. I gave the Council, X and X’s representative an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. 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.
15. Planning enforcement action is subject to statutory time limits. On developments and changes of use that happened before 25 April 2024 are as follows. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.
16. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I– Buildings of exceptional interest.
• Grade II* – Buildings of particularly important/more than special interest.
• Grade II – buildings of special interest.
17. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
18. When they consider applications for developments that are not listed buildings, councils may also take account of the impact that development will have on any nearby listed building and its setting.

What happened

19. X lives in a Grade II listed building, which shares a boundary with a business. The business carried out landscaping work and built structures on the land near X’s home.
20. I examined the plans and aerial photographs of the site and the new development, which included X’s home and garden.
21. X’s home is above the site of the new development. The windows at the rear of X’s home are offset at an angle away from development works and structures on the neighbour’s land.
22. X has balconies at the rear of their home, from which they can see the new development on land below. They can also see an area of decking near the side boundary which was used for commercial purposes. This decking is higher than X’s home. I will refer to this decking area as DA1. X complained that DA1 was used for commercial purposes connected to the business.
23. X complained to the Council and a planning enforcement officer visited the site. In addition to the DA1 platform, the planning enforcement officer found newer development works that were in breach of planning controls. The planning enforcement officer recommended the developer submit a planning application. The new development works also included an area of decking. I will refer to this decking area as DA2.
24. The planning application was received and considered by a case officer, who wrote a report. DA1 was excluded from the application site plan. The Council served an enforcement notice about DA1. I have seen a copy of this notice. It states that the use of DA1 had changed from residential to commercial purposes, and that use was unlawful and should cease. By serving the notice, the Council has stopped the clock on the statutory time limit.
25. The Council considered the planning application for the new development, which included DA2. The case officer report included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• comments from a neighbour and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on residential amenity, the Grade II listed building status of X’s home, and land use and design matters; and
• the officer’s recommendation to approve the application, subject to planning conditions.
26. The description of the site in the decision notice, said the application was for a change of use of land which had been a paddock, but it did not state what the new use would be. The description did mention the new development, including DA2.
27. The case officer’s report used the same description as the decision notice that followed it, but within the paragraphs that followed it said the paddock use would change to a land use associated with the business, and the development structures, including DA2 would be used for the owner’s private purposes.
28. The planning application for new development was approved subject to conditions, controlling:
• compliance with approved plans;
• no additional overnight stays; and
• the hours of use of external lighting.
29. X complained to the Council about its decision to approve the planning application raising a number of issues. X also complained about the Council’s decision not to take further planning enforcement action.
30. In relation to its decision to approve the planning application, the Council said:
• it did not agree it had allowed a commercial use of the land and so no further planning controls were necessary;
• it did not agree the application lacked detail;
• the case officer report shows the building conservation officer was consulted and did not consider the development had a significant impact on X’s home, the Grade II listed building;
• its decision did not give permission for any further commercial use, but development for the private use of the business owner; and
• it did not consider it necessary to revoke or modify its planning decision, as X had suggested.
31. In relation to its decision not to take enforcement action, the Council said:
• it had taken legal advice and served an enforcement notice relating to the commercial use of land (DA1), which was not included in the planning application;
• its view was that the private use of DA1 was acceptable in terms of planning harm, but the commercial use would not be;
• the enforcement notice had not been challenged by the business owner, and it had seen no evidence of further breaches since.
32. I spoke with a planning manager about the planning application, which included DA2. The planning manager said:
• The description in the planning approval was not clear, as it did not state what the new use was. However, the case officer’s report made it clear that the purpose of the proposal was for the land and development to be used only by the business owner and their family, and not for the business’ customers.
• The Council accepts it could have dealt with this matter better and could make improvements to its service to ensure its decisions were clearer in future.
• The Council has seen no evidence to suggest the business owner was using the land for commercial purposes, but if this happened, the Council could argue this was against the spirit of the approval and what was proposed in the application documents.

My findings

The Council’s planning enforcement decision

33. 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.
34. Before it made its planning enforcement decision about DA1, the Council considered the allegation, found a breach of control, served an enforcement notice and then decided to take no action as it had no evidence of any further breach of planning controls. The Council followed the planning enforcement process we would expect.
35. X’s representative said the Council either deliberately or negligently lost control of DA1. By serving an enforcement notice on DA1, the Council has stopped the clock for the statutory timescale for taking enforcement action. It is unclear why X’s representative believes the commercial use at DA1 is immune. The evidence I have is the commercial use began less than 10 years ago. As the Council followed the correct process to decide whether to take enforcement action, there is no fault.

The Council’s planning application decision

36. Before it made its planning application decision relating to new development on the land, the Council considered the application documents and plans, relevant policies, comments from consultees and the main planning issues. It also considered the impact DA2 had on its surroundings.
37. The Council followed the process we expect before approving the application. Therefore, there is no fault in the Council’s judgement and subsequent decision to approve the application.
38. I found fault in the way the Council described the change of use of the site. The description of the site in the Council’s decision and case officer report states what the existing use was, but it does not state what use has been approved. It is not clear from the description what it is the Council has approved. This is fault.
39. The Council believes that despite the lack of detail in the decision notice description, it may be able to maintain planning control to stop further commercial use of DA2 and other developments and land included in the approved plans.
40. I cannot know if the Council would succeed if challenged on this point, as it would be for a court or appeal body to decide.
41. As I understand it, the land in question has not yet been used for commercial purposes and we cannot recommend a remedy for X for what may or may not happen in future. If the situation changes and the land is used for commercial purposes, and the Council finds it cannot control this use, before coming to the Ombudsman, X should:
• complain again to the Council; and
• ask it to remedy any injustice caused by the fault I have found.
42. I do consider that the lack of clarity is likely to cause uncertainty, frustration and disappointment to X, for which the Council should apologise.
43. The Council has already accepted it could have done better. I will ask it to review its practice and procedures to avoid this fault happening again.

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Agreed action

44. The Council has agreed to apologise to X for the uncertainty, frustration and disappointment caused by the fault I have found.
45. The Council will send the apology letter to X within one month from the date of this final decision.
46. The Council will review its practices and procedures and make any improvements necessary to reduce the likelihood of the fault I have found happening again. If it makes changes to its practices and procedures, it should ensure planning officers are aware and understand them.
47. The Council will provide us with evidence to show it has completed the review within three months from the date of our final decision.
48. The Council will ensure any necessary training is completed within one month from the date the review is complete.
49. The Council will also share the outcome of this review with the relevant oversight and scrutiny committee within one month from the date it finishes its review.

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Final decision

50. There was fault in the way the Council made its planning application decision but there was no fault in the way it made its planning enforcement decision. I have completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman