Summary: Mr C complains at the Council’s decision that it is not expedient to take planning enforcement action against an unauthorised Mosque close to his home. We find fault in the Council’s decision as it did not properly take account of government guidance, its own enforcement policy and other relevant factors when making it. This has caused injustice to Mr C as there is uncertainty if the Council would have made the same decision but for the fault. The Council has accepted these findings and agreed to re-consider its decision. Details of how it will do this are set out at the end of this statement.

The complaint

1. I have called the complainant ‘Mr C’. He complains about a decision taken by the Council that it is not expedient to take enforcement action against a Mosque that operates without planning permission close to his home. Ten residents living nearby have written in support of Mr C’s complaint.
2. Mr C says because of the Council’s decision there are no planning controls over the Mosque. He and other residents say the Mosque has a negative impact on them. In particular, because visitors to the Mosque park on local roads which causes congestion and difficulties for residents parking near their homes. He says residents also experience the negative impact of noise. This can be from visitors arriving and leaving the Mosque and some hear noise from inside the building. Residents say the Mosque often opens at 5:00am and stays open until late in the evening.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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. If we are satisfied with a council’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

6. Before issuing this decision statement I considered:

• Mr C’s written complaint to the Ombudsman and any supporting information he provided including the letters of support from other residents.
• Information provided by the Council in response to written enquiries.
• Relevant local and national planning policy and guidance referred to in the text below.
• Comments made in response to a draft decision statement where I set out my thinking about the complaint.

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What I found

Background

7. This is the second complaint Mr C has made to this office about the approach of the Council’s planning service towards the Mosque at the centre of his complaint. Mr C lives on a residential road in the Council’s area, around 100 metres from a main road where there are various local shops and other local amenities such as pubs and churches. On the main road is a former house converted over 20 years ago into a GP surgery with flat above that later became a dental laboratory. Since 2017 a Mosque has used the building. Running alongside the Mosque is a public right of way that also provides access to the rear of some nearby houses.
8. In February 2019, we issued a decision upholding a complaint Mr C made about the Council’s response to service requests that it take enforcement action against the Mosque. The Council said that it could not take enforcement action as it considered the Mosque was not an unauthorised use of the building. This was because the Council understood it to be in the same ‘use class’ as the previous use of the building (the dental laboratory and before that the GP surgery). Mr C received legal opinion suggesting the Council had not taken account of relevant planning law. We found the Council had not properly considered the legal argument.
9. In response the Council accepted our findings and agreed to reconsider. The result of that reconsideration was the Council decided the use of the building as a Mosque was an unauthorised use. It agreed therefore the use as a Mosque was not immune from planning enforcement action.
10. The Council therefore agreed to reconsider whether it should take such enforcement action. In February 2019, it decided that it was not expedient to do so. It is that decision which is the subject of this complaint.
11. When, in 2018, Mr C made his initial complaint to the Council about the Mosque around 30 local households signed a petition of support. On this occasion we have received 10 letters or emails of support from residents who say they have similar concerns to Mr C. He has also made me aware of other expressions of dissatisfaction from local residents with the operations of the Mosque which I will refer to below.

Key law and guidance

12. The Town and Country Planning Act 1990 defines a “breach of planning control”. One such breach is where someone carries out development without the required planning permission. This includes using a building for a purpose other than the ‘use class’ of that building, as defined by the Town and Country (Use Classes) Order 1987.
13. The Act says a local planning authority may issue an enforcement notice where it appears to them there has been a breach of planning control and “that it is expedient to issue the notice having regard to the provisions of the development plan and to any other material considerations”. The power to take enforcement action is therefore discretionary.
14. The Government also issues guidance to local authorities on the use of enforcement. It says that as well as the law a local planning authority should take account of its own local enforcement plan. It also says: “Effective enforcement is important to:

• tackle breaches of planning control which would otherwise have unacceptable impact on the amenity of the area;
• maintain the integrity of the decision-making process;
• help ensure that public acceptance of the decision-making process is maintained.”

15. The guidance also says: “Nothing in this guidance should be taken as condoning a willful breach of planning law. Enforcement action should, however, be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case. In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:

• there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
• development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
• in their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.

16. On its website the Council publishes “A Guide to Enforcement”. This says: “Investigating officers will always try to negotiate a solution to the problem and try to persuade the contravener to voluntarily remedy the breach of planning control. Most cases are resolved in this way. In some situations this might involve the submission of a retrospective planning application on which you can comment.”
17. The Council also publishes a scheme of delegation dated 2015. This says that officers have the power to close investigations into breaches of planning control where they find it is not expedient to take action. But only “having consulted with the relevant committee chair”. The Council says that in practice this part of the scheme fell into disuse following its original introduction in 2009 due to the number of cases involved. It says committee chairs agreed officers should only refer such cases where the Council had previously refused planning permission.

The Council’s decision and further comments

18. A senior Council enforcement officer took the decision it was not expedient to take enforcement action in this case. Before doing so, they recorded asking a senior planning officer for their opinion on “whether officers would support an application for a change of use” of the building to a Mosque.
19. The opinion of the senior planning officer said the following:

• That if the Council received a planning application for a change of use of the building as a Mosque then the operation of the Mosque for the proceeding 18 months would be “a material consideration”.
• The principle of a Mosque in the local area would be “acceptable in principle […] subject to its local impact”, given it lies in an area of mixed housing and business.
• The Council would “anticipate” the majority of users of the Mosque to travel by foot.
• There was a small car park next to the Mosque and on-street parking nearby. The Council considered “no significant highway safety issues have arisen” since the Mosque opened.
• That while close to homes, the Mosque would be “unlikely” to impact on the amenity of local residents and “certainly not greater than nearby public houses”. Any disturbance during the day was “unlikely” to be harmful and “disturbance in the evenings and other unsociable hours is unlikely to be a regular event”.
• That while it was “possible to impose planning controls relating to amenity issues that are less than a statutory nuisance” they did not envisage such a need given the Mosque’s “small scale”.

20. The enforcement officer said “in the absence of continuing complaints the senior officer has concluded that officers would support a retrospective application therefore I would recommend that it would not be expedient to pursue enforcement action to force the closure of this valued community Mosque”.
21. The Council went on to close its enforcement case file. It did not approach the Mosque to discuss it presenting a retrospective planning application permitting the building’s change of use. When we asked for more explanation for this the Council said it wanted to decide quickly. It also took account that “officers had already indicated to the owners that planning permission was not required”. This advice pre-dates Mr C’s first complaint about the Mosque.
22. When Mr C complained about this decision, the Council considered his complaint under its corporate complaints procedure. It has provided two replies to Mr B at ‘Stage One’ and ‘Stage Two’ of that procedure. In that correspondence the Council has raised the further points. That:

• Previous uses of the building did not have conditions covering their hours of business. The dental laboratory had operated “into the early evening” and “workers could often be seen working upstairs very late”. The Council says “Mosques do not have restrictions on their opening hours”.
• Its planning service had not received any complaints further to those we previously investigated.
• The Council does not consider vehicle movements are “any worse now than they were before or could have been given the unrestricted planning use”. Highways officers have visited the site “at different times of day” and “not witnessed an unacceptable level of parking”.
• The Council had not witnessed any noise from “chanting” from the Mosque (something reported by those living closest to it). That “in any event the Council’s environmental health department can deal with noise complaints”.
• The Mosque has six off-street parking spaces which would conform with the Council’s parking standards for a place of religious worship of that size.
• That other commercial businesses, including public houses, operate in the area and the Council’s planning enforcement service has no control over them.
• It had “fully taken on board” the views of residents in deciding it was not expedient to take planning enforcement action.

23. In further comments during this investigation, the Council Highways Manager has said the highways service would not object to a planning application for a change of use of the building to a Mosque. They have said they have visited the site on two occasions and have familiarity with the area. They note the parking next to the building and on street nearby. We asked the Council if it could provide contemporaneous notes or photographs from those visits and confirm when they took place. It has not done so.
24. The Council says its enforcement team has not recorded complaints about the Mosque further to Mr C’s initial complaint (i.e. that we decided in February 2019).
25. In representations to us, Mr C and those residents who support his complaint have said:

• The Mosque opens in the early morning, sometimes at 5:00am and activities can go on until late in the evening. Traffic movements to and from the Mosque can cause disturbance as well as noise from inside the building.
• The Council is wrong to say the Mosque does not cause parking problems. Mr C provides photographs which show cars parked on both sides of local streets (including that where he lives) and blocking pavements. Cars parking for the Mosque also block the right of way to the side of the building.
• The Council is taking an inconsistent line. Mr C has provided me with two examples of where the Council has refused planning permission for Mosques because of the likely impact on local residents’ amenity through visitors or parking impacts.
• The Council has under-recorded the number of complaints about its decision that it is not expedient to take enforcement action. He has provided me with copies of eight emails or letters sent by other residents, some of which the Council acknowledged receiving. I note one of the emails was wrongly addressed.
• Mr C also notes that support for his first complaint shows there is wider dissatisfaction with the activity at the Mosque. So does the response to public consultation when the Mosque sought planning permission for changes to the exterior of the building (extensions front and back).

My findings

26. I find fault in how the Council decided it was not expedient to take enforcement action in this case. I have considered first the justification put forward by the Council for its decision.
27. The Enforcement Officer gave weight to advice received from a senior planning officer. This said planning officers were likely to be supportive of a retrospective planning application for a change of use to allow the building’s use as a Mosque. It does not follow from the senior planning officer’s advice therefore, that enforcement officers could resolve to take no action in this case. The advice pointed towards encouraging a retrospective planning application.
28. Further, taking this line would be consistent with the Council’s own enforcement policy which encourages this approach. The Council’s enforcement policy suggests that it will usually, as a minimum, encourage someone in breach of planning control to submit such an application. Government advice also makes clear that for breaches that are not minor (or the most serious) a retrospective planning application will be a preferable course of action.
29. The Council’s enforcement decision contains no explanation for why officers decided to depart from policy. I consider failing to take that policy into account flawed its decision making.
30. Second, I also find the Council did not address in its decision a further relevant factor introduced by the senior planning officer’s advice. The senior planning officer clearly based their advice on certain assumptions. The officer “anticipated” most visitors to the Mosque would arrive by foot. Similarly, he considered the Mosque would be “unlikely” to harm amenity to residents. He based these views on experience of similar small-scale Mosques and I have no reason to challenge these opinions. But as the advice pointed out if the Council received a retrospective planning application then the Mosque’s operations since it opened would be a material planning consideration.
31. It flows from the Senior Planning Officer’s advice therefore the Council could rely on more than assumptions when considering the impact of the Mosque. It could consider the actual impact. I find no mention of this important consideration in the enforcement officer’s report. That was a fault.
32. Third, the decision also hinged on the “absence of continuing complaints”. This is clearly wrong. The Council knows from the past petitions it has received about the change of use that some nearby residents have long-standing concerns about the use of the building as a Mosque. Their original complaint and the response to the application made by the Mosque to build extensions all cited the impacts of parking, noise, traffic congestion and so on. The purpose of the complaint about the building’s unauthorised change of use was because they wanted the Council to engage with those concerns.
33. I consider the Council obliged in its enforcement decision to take account of these concerns. Government advice makes clear that decisions about enforcement engage the wider issue about the need for integrity in the planning process. Its enforcement decision gave no scrutiny of the views of residents affected by the Mosque’s operations. I consider it insulting to residents to suggest their views were “fully taken on board” in its decision. They were not and that too was fault.
34. I recognise that since making its decision the Council has sought to offer further clarification for its position and provided more reasoning. In doing so I find it has introduced irrelevant considerations. In particular:

• In comparing the previous unauthorised use of the building as a dental laboratory with the current use. The Council must consider the case for enforcement against the use of the building as a Mosque on its merits. The previous use of the building for an unrelated and unauthorised use has no relevance.
• It is also irrelevant the Council previously gave advice to the Mosque that it did not need planning permission. I accept that may cause embarrassment to the Council but that is no reason not to invite a retrospective application.

35. I recognise the Council has provided more information from its Highways service which could be relevant to its decision on enforcement. On its own I do not find this enough to outweigh the many concerns I have about the Council’s decision set out above. In addition, I also find the analysis lacking in detail. The Council has not explained such matters as when it carried out its visits to assess parking impacts. It is no substitute for the detailed analysis I would expect to find in a planning officer report considering a detailed planning application.
36. This also brings into focus there has been no detailed analysis of the noise impacts associated from the Mosque whether resulting from its hours of opening or activities inside. There has been no adequate consideration of this matter whereas a retrospective planning application would require planning officers to seek views from the environmental health service. These were matters the enforcement service should have weighed in its decision.
37. In setting out my analysis above I have noted the government advice that a local planning authority should not pursue enforcement action for the sake of it. If satisfied that it would give permission to the unauthorised development without conditioning it, then it can choose not to pursue enforcement action. In considering the impact of the fault in this case I am conscious therefore that even after following a proper process the Council could still resolve not to take any enforcement action. But it must follow proper process to arrive at such a decision.
38. For the reasons set out above I find it has not done so here. Consequently, I cannot be satisfied that if the Council had taken a decision without fault in this case that it would have reached the same conclusion. That causes injustice to Mr C and others because it means the Council’s decision cannot be relied on.
39. I set out below actions the Council has agreed to remedy this injustice. However, before I do it is also appropriate I comment on two further strands of the complaint. First I note the Council took this decision contrary to its published scheme of delegation, which required it to seek approval for its decision from a committee chair. I accept this part of the scheme may have fallen into disuse for the reasons given. But it is fault for the Council to have an outdated scheme in publication.
40. I accept this fault does not result in injustice. Because had the scheme been updated to reflect practice it would not have made a difference to the decision. But the Council has agreed further action to address this matter also.
41. Second I have noted the comments of Mr C around the right of way issue. It does not affect him directly but some of those who support his complaint. I can see from photographs that vehicles parked outside the Mosque have blocked the right of way on occasion, which blocks vehicle access to houses although not pedestrian access. The Council will need to consider if that is a material planning consideration, should the Mosque submit a retrospective planning application. But otherwise the Council will not be involved in this matter. Because where vehicular access to homes is blocked by the actions of visitors to the Mosque, then that is a civil matter between the parties. It is not something for the Council to address through its Rights of Way officer.

Agreed action

42. I welcome that the Council has accepted my findings set out above. In considering how the injustice to Mr C should be remedied, the first principle we consider is that the complainant should be put back in the position they should have been in, had no fault occurred. It flows from the above that to remedy this complaint the Council must reconsider its approach to enforcement in this case. In addition, after two upheld complaints Mr C will want assurance of the Council’s ability to reconsider this matter in a way that assures transparency and fairness. The action the Council has agreed reflects this.
43. The Council has agreed that within 20 working days of this decision it will:
1. Provide a written apology to Mr C accepting the findings of this investigation.
2. Commit to undertaking a further assessment of the case for enforcement action against the unauthorised Mosque at the centre of this complaint. This must take account of my findings above. It must be undertaken by a senior officer with no previous involvement in the case. If it is not possible for the authority to identify such an officer, then it will invite a senior enforcement officer from a neighbouring authority to undertake that assessment.
3. In the event the Council resolves to invite a retrospective planning application and the Council receives such an application then it can determine this in line with its usual procedures. However, it should ensure that if the application will not be decided by a planning committee that the planning case officer is one with no previous involvement in the case. Alternatively, the Council can refer any application to its planning committee for a decision.
4. In the event the Council resolves not to invite a retrospective planning application or that no such application is forthcoming and the Council resolves at that stage not to take enforcement action, it will refer that decision to a planning committee for its approval.
5. It will commit to amending that section of its scheme of delegation for officers which covers decisions where it is not expedient to take enforcement action, to reflect its practice. It will complete this amendment at the time of the next review of the policy.

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Final decision

44. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Mr C. The Council has agreed action which will remedy Mr C’s injustice. Consequently, I can complete my investigation.

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Investigator's decision on behalf of the Ombudsman