Summary: Mr X complained about the way the Council considered planning applications and planning breaches for the basement of a listed building. The Council was at fault for granting planning permission for one of the basement units. This caused residents uncertainty and distress, and Mr X was put to time and trouble complaining. The Council has offered a suitable remedy for this injustice. There was no fault in the Council’s consideration of alleged planning breaches.

The complaint

1. Mr X complained on behalf of a resident’s association about the way the Council considered planning applications and planning breaches for the basement of a listed building. Specifically, Mr X complained:
• The Council incorrectly granted planning permission for works to the basement after it failed to consider the flood risk or consult the Environment Agency.
• The Council failed to take enforcement action after the applicant carried out works to part of the basement despite the Council refusing permission, and also carried out more work to another part of the basement which was not part of the approved planning permission.
• The Council wrongly told the applicant it was reviewing the matter due to complaints from residents, resulting in the applicant harassing residents and threatening legal action which residents had to defend.
• The Council failed to take action after the applicant sub-let the basement, without permission, to a club who caused anti-social behaviour and vandalism.
• There were delays in the Council’s consideration of the issues, creating uncertainty and aggravating the situation.
2. Mr X said Council’s errors and failure to take timely action meant the residents experienced anti-social behaviour and harassment, and the resident’s association had to take expensive legal advice, repair damage, and install security cameras around the building.

Back to top

The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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(1), as amended)

Back to top

How I considered this complaint

5. As part of the investigation, I considered the complaint and the information Mr X provided.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Planning permission

8. Councils should approve planning applications in line with their local development plan, unless material planning considerations suggest otherwise.
9. Material planning considerations may include:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

10. Material planning considerations do not include:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

Planning Use Classes

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’ which means ‘of its own kind’ or ‘unique’.
12. Planning permission is usually needed 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.

Listed building consent

13. Where a council consider a building has significant historic or architectural interest it may record and grade it 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 special interest; and
• Grade II* – particularly important buildings of more than special interest.

14. 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.
15. It is an offence to carry out work on a listed building without first getting listed building consent from the planning authority.

Enforcement

16. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
17. 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.
18. Councils have a range of options for formal planning enforcement action available to them, including:

• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already decided necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

19. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
20. Government guidance says: “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 December 2024, paragraph 60)

Revocation

21. Councils have powers under the Town and Country Planning Act 1990 (‘the Act’) to revoke or modify planning permission, and to discontinue uses. They are very rarely used. Planning permission grants development rights and it can be a complex and potentially expensive process to withdraw that permission. 
22. Section 97 of the Act gives councils the power to revoke or modify planning permission before the building works or change of use has been completed. 
23. Section 102 of the Act gives councils the power to make a discontinuance order to stop a use when the development or change of use has been completed.

What happened

24. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
25. The resident’s association owns the freehold to the building where Mr X lives. The building is Grade II listed. The basement of the building was formerly used as a public house by the previous leaseholder. It was later used as a coffee shop.
26. The current leaseholder of the basement (‘the leaseholder’) applied to convert the basement into an art gallery and two bedroom residential flat in the Northern part of the basement in 2018. The Environment Agency objected to the flat on the grounds of flooding. The leaseholder therefore made a revised application to convert the basement into an art gallery only instead. The Council granted planning permission.
27. The leaseholder made a new application to convert the Northern part of the basement in to a two-bed flat in 2023. The leaseholder said in their application that the site was not in a flood risk area. This time the Council did not consult the Environment Agency. Residents of the building objected to the plans due to the flood risk, but the Council granted planning permission.
28. The leaseholder then applied for permission to convert the Southern part of the basement into a one-bed flat in 2024. Mr X said the leaseholder continued with internal works to the Northern and Southern areas of the basement without permission from the resident’s association.
29. The Council consulted the Environment Agency on the application for the Southern part of the basement. The Environment Agency again objected because of flood risk. It also raised concerns about the residential permission the Council granted for the Northern part of the basement. The Council therefore refused planning permission for residential use of the Southern part of the basement.
30. According to Mr X, the leaseholder continued with conversion works despite the refused planning permission, and tried to both rent and sell the Northern flat without a residential lease in place. The online listings showed a third bedroom in the Northern part of the basement which the leaseholder did not have permission for. The leaseholder asked the resident’s association to issue a rental lease for the Northern part of the basement in January 2025. The resident’s association refused.
31. The resident’s association wrote to the Council in February 2025, asking about the safety of the Northern flat and the status of the Southern flat. They asked whether they should grant leases given the objections from the Environment Agency.
32. The Council said it was reviewing the planning permission for the Northern flat, and the resident’s association should not issue leases until the Council completes its investigation.
33. In March 2025, residents reported feeling harassed and pressed by the leaseholder over the issuing of new leases. The leaseholder then threatened to sue the resident’s association, so they instructed solicitors to handle matters.
34. The Council wrote to the resident’s association in April 2025, confirming it made an error granting planning permission for the Northern flat. It confirmed the Environment Agency was still opposed to both proposed basement flats on safety grounds, and if the Council had consulted them, they would have objected. The Council advised residents not to grant leases for either basement flat at that time. The Council confirmed its decision to refuse permission for the Southern flat still stood, and the leaseholder had not appealed.
35. The leaseholder told residents in May 2025 that they planned to sublet the basement for commercial use. The resident’s association then received complaints a motorcycle club had moved into the Northern basement flat and were harassing residents, burning rubber, and making noise in the early hours. Mr X said the club claimed to have a commercial lease, despite the leaseholder not telling the resident’s association.
36. The resident’s association discussed the issue with the police and wrote to the Council asking for help. They also made a planning enforcement complaint, reporting the following breaches:
• Unlawful use of the Northern part of the basement as a commercial club, despite planning permission for residential use.
• Unauthorised building works in the Southern part of the basement where planning permission was refused.
• Unauthorised works to a listed building in the Southern part of the basement.
• Non-compliant building works for the Northern part, which has an added third bedroom.
37. Mr X asked the Council to issue a temporary stop order over the commercial club use of the basement. The Council advised if it did issue a stop notice, it would have to serve a copy on the resident’s association as well, because they own or manage the building. It said a stop notice would be to prevent planning harm, not to prevent noise or disruption from club members. The Council urged the resident’s association to take legal action or consider an injunction.
38. Mr X then asked for his local councillor’s help. He said the length of the Council’s investigation into its error granting planning permission in 2023 made the leaseholder lose patience and adopt a confrontational approach to residents, including allowing a motorcycle club to use one of the basement units as a clubhouse. He said residents now faced substantial legal costs due to these issues.
39. The Council opened an enforcement investigation on 26 May 2025. It visited the site on 27 May but could not gain access to the basement.
40. The Council contacted the leaseholder about the enforcement complaint in early June 2025 and arranged a site visit for late July. The case officer recorded some minor changes to room configurations, but not affecting the historic integrity of the building. The Council told the leaseholder they would need permission to change the use of the Northern part of the basement to allow it to continue being used as a club house.
41. The planning enforcement case officer planned to send the leaseholder a Planning Contravention Notice (PCN) for answers on the works, what the units were being used for and what the leaseholder intended to do. A planning manager said to wait until after an inter departmental meeting and input from the Council’s legal department.
42. In August 2025, Mr X reported a suspected associate of the motorcycle club smashed a window at the front of the building twice and left graffiti. He said residents were scared. He asked the Council for an urgent update on what action it was taking. He also asked the Council to liaise with the police. Mr X believed the vandalism and threats by the motorcycle club was linked to the Council’s recent enforcement visit.
43. The Council said it could not address most matters Mr X raised from a planning perspective, as they involve criminal activity that can only be dealt with by the police. The Council said its planning team was reviewing the 2023 approved application for the use of the unit, as well as its current use. The Council planned an inter department conference later in the month to discuss findings of a recent site visit, which showed internally just evidence of the two units having been converted for residential use. The Council did not consider the change of use from a gallery to a residence or the use of that residence for a club would be so harmful in planning terms to issue a stop notice. It said disorderly behaviour or parking matters was beyond the planning team’s remit, but it was negotiating with the leaseholder. It said the planning team could not enforce against noise or anti-social behaviour, but the relevant departments were aware. It said residents could take civil action over the use of the units they own. It said the planning review was still under consideration, so it could not consider what enforcement action it may take until this was completed. The Council asked for information about the lease for the basement area.
44. Mr X said the current basement lease is a for a public house. The leaseholder changed the planning permission in 2018 without consent from the resident’s association and without seeking to amend the terms of the lease. The leaseholder did seek consent for two residential units in 2024 but was unwilling to meet the necessary conditions. He instead tried to let the flats without leases. Mr X said their solicitors served a section 146 notice on the leaseholder for forfeiture of the basement lease on 4 August 2025, giving him six weeks' notice to secure the premises, shut down the drinking club, and remedy several breaches.
45. The Council updated Mr X on 22 August 2025 that the leaseholder gave assurances the basement units will no longer be used by the motorcycle’s club.
46. The Council served a PCN on the leaseholder in September 2025, seeking further information about alleged unauthorised material change of use from domestic to commercial and possible internal works constituting development to a listed building.
47. The leaseholder said neither basement unit was currently in use. Regarding the Northern unit, the leaseholder said the proposed use was residential or commercial, depending what lease they could secure. They said there were no structural changes, and the unit was substantially completed in 2019, with minor conversion in 2024. The leaseholder also said the use of the unit by the motorcycle club had ceased, though they were in negotiations with the club as a potential buyer of the unit if it remained commercial.
48. The leaseholder said the Southern unit was not in use. It had been used as a gallery until 18 months previously. They said the intended use was residential or commercial, depending on what lease they could secure. The leaseholder was considering applying to change the use. They claimed the Southern unit was substantially completed in 2018 and there were no structural changes since. It was used for storage and had never been used by any group.
49. Mr X’s local councillor asked the Council’s planning enforcement team for update in October 2025. They also asked for a site visit and Council support on repairing the building, preserving evidence, and recovering costs linked to the Council’s error granting planning permission.
50. The Council’s view was that there were some minor changes to the approved Northern unit layout, but no concerns about the fabric of the building. The changes were not material and would be permitted development if the flat was substantially complete. The ‘third bedroom’ would be a minor change and either permitted development or not expedient to pursue. The use as a motorcycle club house was a breach, but the use stopped after a period of negotiation, so there is no longer a breach. The leaseholder carried out some works to convert the Southern unit to residential. However, this did not affect the fabric of the building, and the unit was not in use, so there was no planning breach. The Council therefore closed its enforcement investigation.
51. In February 2026, the Council issued revocation notices for the Northern basement unit planning permission which it granted in error.

My investigation

52. Mr X said it took the Council 15 months to issue revocation notices, and it gave no explanation for the delay. He said the Council allowed the leaseholder to run an unlicensed drinking club for motorbike gangs because of its failure to take timely enforcement action.
53. Mr X told me it appeared the Council told the leaseholder in early 2025 that it was reviewing the planning permission due to resident’s objections, when in fact it was because the Environment Agency objected. This prompted the leaseholder to try to intimidate residents to drop their objections. Residents had to invest in CCTV and private security guards to protect the building from criminal damage.
54. Mr X does not feel revoking planning permission is enough to address the harm and losses residents suffered. He said the resident’s association had to take their own legal action to prevent use of the basement. Their costs for legal fees, CCTV, security guards, repairs, new locks, removal of graffiti, and structural surveys was over £22,000.
55. The Council told me it promptly visited the site and communicated with the leaseholder after opening the planning enforcement case. There was insufficient evidence to show a material change of use that would justify formal enforcement action. Officers did note a motorcycle group using the building on infrequent evenings, but there was no bar or evidence of facilities for use as a drinking establishment. The motorcycle group stopped using the building by 21 August following positive negotiation with the leaseholder.
56. The Council acknowledged it should not have granted planning permission to convert the Northern unit into a two-bed flat. It said officers should have considered existing flood risk standing advice, but they did not take this into account. Officers also did not consider the earlier Environment Agency objection or the earlier planning application history. This was down to human error.
57. The Council told me it made service improvements to prevent similar recurrence. The flood risk assessment will now flag as a constraint on all planning applications within the area, so it is highlighted to validation and planning officers. The Council also reminded validation officers of the need for flood risk assessments for applications within that area, depending on the nature of the proposed development. And it reminded planning officers of the need to consider developments against flood risk standing advice and the need to consult the Environment Agency on certain type of applications within the boundary. Officers also received training on using the strategic flood risk assessment.
58. The Council said the planning history and building history is complex, meaning extensive multi-departmental collaborative work. It accepted it was a lengthy process to serve revocation orders. It said the power to do so is rarely used, and it took time to seek legal and insurance advice, as well as information to inform the Council’s decision. It recognised this will have caused uncertainty for residents.
59. The Council accepted it was at fault for granting planning permission in error when it should have refused due to flood risk. It recognised this will have caused inconvenience and distress to the resident’s association. It apologised and offered a symbolic payment of £650. £500 for the avoidable distress its fault caused, and £150 for the resident’s association’s time and trouble, as the Council missed the chance to offer a symbolic payment through its complaint process.

Analysis

60. The Council accepted it was at fault for granting planning permission for the Northern basement unit. This was down to human error. I am satisfied the Council’s service improvement actions are a suitable way to prevent a similar recurrence.
61. I found there was no fault in the Council’s planning enforcement investigation. It visited the site, considered the historic nature of the building, sought further information through a PCN, and negotiated a stop to the motorcycle group use with the leaseholder. This took about three months, which is a reasonable timeframe.
62. The Council was satisfied the internal changes did not affect the historic fabric of the building. It was also satisfied these changes were either minor in planning terms or did not constitute a planning breach. Those were professional judgements by qualified planning officers, and enforcement action is discretionary. I did not see evidence of fault in the Council’s consideration of the issues.
63. Complaints about the behaviour of some motorcycle group members, including vandalism and anti-social behaviour, sit outside the remit of planning enforcement. Residents received some support from the Council’s planning enforcement team and anti-social behaviour team, and I did not see evidence of fault in the Council saying these matters should primarily be handled by the police.
64. While it took the Council a considerable amount of time to decide what action to take over its error in granting planning permission, it was not at fault for the actions of the leaseholder or motorcycle group. I appreciate Mr X considers the Council did not do enough to help and took too long. However, I am satisfied the Council acted within the scope of its available powers. Pursuing more formal enforcement action would not have guaranteed a speedier outcome, and would have likely involved the resident’s association also being named in any enforcement notices. This would also not have sped up the decision-making process for the planning permission error. Revoking or discontinuing planning permission is a complex and rarely used process, requiring legal and insurance input. I am also mindful of the fact residents had a contractual relationship with the leaseholder, with the option to pursue private legal action. I appreciate the costs of such action were prohibitive but again that is not the fault of the Council.
65. Nevertheless, the Council has acknowledged the uncertainty and distress residents suffered as a result of its error. I consider the Council’s offers of £500 for the distress caused, and £150 for time and trouble, are suitable and in line with the Ombudsman’s remedy guidance.
66. I have not seen evidence in the Council’s case file or correspondence that it told the leaseholder it was reviewing the planning permission it granted due to complaints from residents. I cannot say whether the Council did or did not tell the leaseholder about the resident’s complaints, or whether the leaseholder arrived at this conclusion themselves.

Back to top

Agreed Action

67. Within four weeks of my final decision, the Council will:
• Apologise in writing to the resident’s association for its errors granting planning permission, recognising the inconvenience and distress this caused.
• Pay Mr X, on behalf of the resident’s association, £650 for their distress and time and trouble.
68. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final Decision

69. I found the Council at fault for granting planning permission for the Northern basement unit. This caused residents uncertainty and distress, and Mr X was put to time and trouble complaining. The Council has offered a suitable remedy for this injustice. There was no fault in the Council’s consideration of alleged planning breaches.

Back to top

Investigator's decision on behalf of the Ombudsman