Summary: We will not investigate this complaint about the Council allowing a café to open on bank holidays as a non-material amendment to a planning permission. There is not enough evidence of fault by the Council or injustice to Ms X to warrant investigation by us.

The complaint

1. Ms X said the Council wrongly extended the opening hours of a café to include bank holidays. She said it did this by wrongly treating the change as a non-material amendment to the original grant of planning permission. She said this created additional disturbance on a footpath behind her home.

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The Ombudsman’s role and powers

2. 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.

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

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How I considered this complaint

3. I considered information provided by the complainant and checked the Council’s website as well as online images of the location.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The matters arose after the café opened on a bank holiday that fell on a day of the week when it would otherwise normally have opened. The Council decided enforcement action was not warranted. It could do that as enforcement action is discretionary. It decided instead to treat the matter as requiring a non-material amendment to the grant of planning permission. It could do that as planning authorities have discretion to decide what is a non-material matter. Were we to investigate, it is unlikely we would find fault with the Council’s exercise of the discretion available to it.
6. The footpath that runs behind Ms X’s home is not the sole route to the café. The nature of its location means it is likely to be used on bank holidays between1m and 4pm by walkers and for other leisure purposes, as well as at other times. Establishing a direct causal link between the opening of the café and significant additional noise or disturbance created by leisure users would be unlikely. Therefore, even if there were fault in the Council’s actions, it is unlikely we would find sufficient consequent injustice to Ms X to warrant investigation.

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Final decision

7. We will not investigate Ms X’s complaint because there is not enough evidence of fault or injustice to warrant our further involvement.

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Investigator's decision on behalf of the Ombudsman