Summary: There was fault with the Council’s decision to suspend a planning enforcement investigation. The Council agreed to remedy the injustice to Mr X through action and a time and trouble payment.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains about the Council’s decision to suspend a planning enforcement investigation pending the submission of a planning application y the owner/operator of a business.
2. Mr X says the business breached conditions of its planning permission. Mr X wants the Council to take enforcement action against the planning breaches as well as enforcement action on parking restrictions.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I considered the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X. I sent my initial thoughts on the complaint to Mr X and the Council. I considered Mr X’s comments on it as well as the Council’s response.

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What I found

6. The business involved is a garage. It is on a site within a conservation area. The operators originally sought planning permission for the use of lock-up garages and forecourts in connection with the authorised use of an adjoining motor vehicle repair garage in 1987. The application was refused by the Council which then served an enforcement notice.
7. The owner/operator of the business appealed to the Planning Inspectorate. The appeal was allowed but a condition was imposed which states the garages and forecourts shall be used only for the parking and storage of vehicles and shall not be used for the repair, servicing or paint spraying of any vehicle at any time.
8. Mr X complained to the Council because he believed the business used six garages and forecourts adjacent to the site. He said the garages are used for storage, including waste material such as old tyres and engine oil. He said the forecourts are used by mechanics for working on vehicles. He also said a private car washing company uses the forecourts.
9. Mr X said the business parked cars on the street even though there are parking restrictions and residents’ access to their homes is impeded.
10. Mr X provided photographs showing the activities of the business.
11. The Council said its officers had asked the owner/operator of the garage to submit a planning application if they wished to use the garages for purposes other than the storage of cars. It expressed its understanding the owner/operator would submit an application to include provision for carrying out minor repair works. It said it would not take formal enforcement action while the planning application was pending.
12. In terms of the photographic evidence Mr X provided on the use of the garages and forecourts, the Council’s response stated “I have seen the photographs you submitted but understand that when site visits were carried out this year no breaches were observed".
13. In terms of the photographs showing use of the garages for storage and removal of waste products, the Council said it was difficult to tell what was being stored or removed. But it said the anticipated planning application would seek to remove the restriction. It said there was no planning restriction prohibiting the removal of waste materials from the site.
14. On car washing at the site, the Council said this activity was ancillary to the type of business and in line with the approved use of the premises.
15. On a photograph showing a car with a raised bonnet on the highway, the Council said it was not clear whether work was being carried out or whether it was an inspection. It said its officers would tell the operator of the garage that repairs should not be carried out on the highway.
16. With regard to cars being parked on or over double yellow lines, the Council said these issues had been addressed by its parking office manager separately. It noted there had been an improvement following enforcement activities by the parking team. It said visits to the site and surrounding roads are carried out as part of the normal patrol process.
17. With regard to display of advertisements by the business on three roads, the Council said it had asked the owner/operator to submit an application for advertising consent.

Finding

18. Procedurally, I am concerned by the Council’s approach. It dismissed the photographic evidence Mr X provided on the use of the garages by saying it had seen his photographs but its officers had not observed any breaches when they visited earlier that year (2020). But if there is no breach of the planning condition then the Council should not even ask the owner/operator to submit a planning application to change the use of the garages. The enforcement investigation could have been closed because officers did not establish breaches of the condition.
19. The Council dismissed evidence Mr X provided on the basis that the business would submit a planning application. This suggests there was evidence pointing to the potential breach of the condition.
20. Similarly, the evidence on the use of the garages for storage was dismissed on the grounds the Council could not be certain about the use but there was the potential for submission of a planning application. If the evidence is uncertain then it was open to the Council to obtain its own evidence possibly through service of a planning contravention notice. The notice would seek information from the owner/operator of the garage and does not bind the Council to formal enforcement action.
21. While it was open to the Council to await submission of a planning application, it should have held open the evidence Mr X supplied to aid any potential planning enforcement case rather than dismiss the evidence. I find the Council’s approach was tainted by fault.
22. Where we find fault by a council we must consider the injustice caused and, where possible, a remedy for the injustice.
23. The substantive parts of this complaint concerning the use of the garages will be addressed by the Council’s enforcement investigation which was pending submission of a planning application at the time the complaint was made to the Ombudsman.
24. There has been a long running problem with this particular business parking cars for repairs on the highway. This issue was one of the prompts for the planning enforcement action the Council took in 1987. That was resolved by the planning inspector granting planning permission but with a clear restriction on the business’ activities to protect the amenity of nearby residents. But it is evident from the Council’s reply that the planning enforcement team consider the matter is solely one for the parking team. I consider there should be greater coordination between the parking and planning enforcement teams on parking matters at this location. The Council’s parking team agreed to increase patrols of the street.
25. I also recommended a time and trouble payment of £100 to Mr X which the Council agreed to provide.

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Final decision

26. There was fault by the Council. It agreed to remedy the injustice to Mr X by increasing the patrols of the street where he lives and by offering a time and trouble payment.

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Investigator's decision on behalf of the Ombudsman