Summary: Mrs X complained the Council failed to comply with planning approval at a site it owns. The Council was at fault for failing to investigate or respond to Mrs X’s allegation about the breach of planning approval. It has agreed to apologise for the avoidable frustration that caused her and investigate the allegation.

The complaint

1. Mrs X complained the Council failed to comply with planning conditions at a site it owns. She said:
1. Vehicles were parking alongside her wall boundary despite the approved site plan not having parking spaces located there;
2. The site was not being used in accordance with the correct planning permission use (class B1).
3. The Council had failed to ensure windows were properly obscured as specified in the conditions.
2. In addition, she said when windows of the building were open, it breached the recommended two meters social distancing introduced by the COVID-19 pandemic because of proximity to her property.
3. Mrs X said the Council’s failure to comply with planning conditions had resulted in a loss of privacy and caused stress and ill health.

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The Ombudsman’s role and powers

4. 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)
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. I read the complaint correspondence between the Mr and Mrs X and the Council.
7. I made enquiries of the Council and considered its response.
8. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

9. The Town and Country Planning (Use classes) Order 1987 classifies uses of land and buildings into various categories known as ‘Use Classes’. Class B1 refers to business use (including office use).

Planning conditions

10. When approving planning applications, councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards. The conditions are included with the decision to approve the application.
11. The decision may also include ‘informatives’. Informatives are not binding but provide useful information that might be relevant to the development, such as potential need to get building regulation consent or a party wall agreement.

Planning enforcement

12. Councils can take enforcement action if they find a developer has breached planning controls.
13. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
14. Councils cannot take enforcement action against themselves. However, we expect them to treat their own proposals as they would a private individual’s. Councils should be able to demonstrate how they have considered any breach of planning approval where they are the developer and keep a record of any action taken.

Background

15. More than a decade ago, the Council approved temporary planning permission for the construction of temporary buildings at a site it owns. The buildings were to provide office space for Council staff and a partner contractor. The site includes a service yard.
16. The plans were approved with the conditions the Council:
1. Remove the temporary buildings within three years.
2. Fit obscured glass to all widows at first floor level on north, south and east elevations to protect privacy of adjoining residential properties.
17. Over the following years, the Council made further applications to extend the temporary planning permission for the buildings. These were approved subject to conditions.

What happened

18. Mr and Mrs X moved into a house adjoining the site. They contacted the Council in May 2020 complaining about the proximity of the buildings to their house; the lack of adherence to the sites parking plans and concerns about waste being kept on the site. They alleged the Council was not using the site in accordance with the B1 planning approval, because the contractors were storing waste on the site, both in their vans and on the land around the building.
19. The Council responded and said it was seeking further planning permission for the buildings as part of a wider regeneration project. In relation to the complaints about parking and the impact of vehicles idling, it said it had asked site users to switch off engines and park facing away from the boundary.
20. Mrs X was unhappy with the Council’s response and said it had failed to address all the points raised. The Council responded further in July 2020. It apologised for failing to address all her points of complaint. It said the Council had passed the complaint about breaches of planning approval onto the Enforcement Team, who would contact her about potential violations of planning approval.
21. Following that, Mrs X complained further. She said staff using the building were opening windows at ground level when she was in the garden. She said that meant they were breaching social distancing guidance introduced by the COVID-19 pandemic. There was no condition requiring the windows to be fixed shut, but the Council said it had asked staff not to open windows on the side of the building adjoining her property.
22. The Council’s planning committee considered the application for further planning permission for the buildings on the site. It approved the application with the conditions that:
• details about the privacy film used on the first-floor windows required submitting to the Council for approval within three months; and
• details on how to ensure the privacy of the neighbouring property required submitting to the Council for approval within one month.
23. The planning permission included an informative that vehicles parking alongside the boundary wall should park facing forwards.
24. Mrs X complained that cars were not parking as per the approved site plans. The Council responded and said it had ordered signage about parking for the site and that it had arranged for the parking bays to be painted out. It said it had between one-three months to comply with the planning conditions. Mrs X complained further about the car parking.
25. Around this time, the Council’s internal emails demonstrate it had confirmed the privacy film specification used on the building’s windows. It also agreed that offices on the first-floor would not be used to protect privacy. It wrote to site users and notified them about the parking informative.
26. The Council sent its final complaint response to Mrs X at the end of November 2020. It did not uphold her complaints about the parking. It said it had sent a letter to site users to park vehicles facing away from the property boundary. It confirmed 18 parking spaces had been marked up on site in accordance with the site plans.
27. In response to my enquiries, the Council said its planning enforcement team were not told about an alleged breach of planning permission until October 2020. It said the enforcement team could not take enforcement action against the Council, but it had provided guidance to the Council’s Asset’s team about the need to comply with planning conditions.

My findings

28. Mrs X initially complained to the Council in May 2020. In its stage two complaint response in July 2020, it said it had passed the complaints about alleged breach of planning permission (parking and waste storage at the site) to its Enforcement Team. That team passed the matter to the Council’s Assets Service. However, the Council did not investigate her allegations of breaches of planning approval at that time or provide a written response about these complaints. That was fault. That has caused Mrs X avoidable frustration and resulted in her making further complaints to the Council.
29. In response to enquiries the Council confirmed it has:
• Marked out the parking bays in accordance with the original site plan; and
• Confirmed the windows are covered in privacy film in accordance with specified guidance.
30. Therefore, the Council has ensured the parking and windows are compliant with planning approval.

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Agreed Action

31. Within one month of my final decision the Council has agreed to apologise to Mrs X for not providing a substantive response to her complaints about breaches of planning approval.
32. Within three months of my final decision the Council will take appropriate action to check whether Mrs X’s allegation about waste storage at the site is a breach of B1 planning approval.

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Final decision

33. The Council did not investigate Mrs X’s complaint about alleged breach of planning permission. That was fault and it caused avoidable frustration. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman