Summary: Ms B and her neighbours complained the Council failed to control development of two properties on their road. They complained the Council did not consider planning applications correctly or take enforcement action against breaches of planning. Ms B and her neighbours said this negatively affected their amenity. We found the Council delayed its planning and complaint investigations. The Council will apologise to Ms B and her neighbours and make service improvements.

The complaint

1. The representative, who I shall refer to as Ms B, complained for herself and her neighbours that the Council failed to control development of two properties on their road, Property 1, and Property 2. They complained the Council did not consider planning applications correctly or take enforcement action against breaches of planning. Ms B and her neighbours said this negatively affected their amenity.
2. They also complained about the use of Property 1 and 2 for supported living placements. They raised concerns about management of and the service delivered by the care agency who leased Property 1 and 2 to provide supported living. Ms B and her neighbours said the behaviour of residents at these properties negatively affected their amenity and their safety.
3. Ms B and her neighbours also complained the Council delayed responding to their complaint

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What I have investigated

4. I investigated the Council’s planning and enforcement actions in relation to Property 1’s rear extension, current use, and erection of a garage. I investigated the use of Property 2. I also investigated the Council’s complaint response.
5. I did not investigate the Council’s actions in relation to planning applications that were withdrawn, rejected, or not actioned as they did not cause the complainants significant injustice and further investigation would not lead to a better outcome for the complainants.
6. I did not investigate concerns raised by Ms B and her neighbours about management of, or the service delivered by, the care agency leasing Properties 1 and 2. Ms B and her neighbours have raised these concerns with the Care Quality Commission (CQC). The CQC is better placed to consider this part of their complaint.

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The Ombudsman’s role and powers

7. 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)
8. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
9. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
10. We normally expect someone to complain to the Care Quality Commission about possible breaches of standards. (Local Government Act 1974, section 34B(8), as amended)
11. 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(i), as amended)

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How I considered this complaint

12. I considered:
• The complaint Ms B is representing and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
13. Ms B, those she represents, and the Council can comment on this draft decision. I will consider their comments before making a final decision.

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What I found

Legislation and guidance: planning permission

14. Planning permission is required to develop land (including its material change of use). Council’s may grant planning permission subject to conditions about the development and use of land.
15. Some developments benefit from a grant of planning permission from central government. Such permission, permitted development, does not need a full planning application for approval. The Town and Country Planning (General permitted development) Order 2015 sets out the different types of permitted development. 
16. Class A developments are larger single-storey rear extensions of an existing house. For these developments, the ‘prior approval’ process applies. The process can be used for single-story extensions of up to six metres for terraced and semi-detached properties. The householder must tell the council about their plans and give the council the addresses of any adjoining neighbours. The council will tell neighbouring properties about the plan for development.  Neighbours can object if the plans will harm their amenity. If neighbours object, the council must decide if the impact is acceptable. The council has 42 days to do this. If the council does not respond within the 42-day determination period, the development can go ahead. Permission is subject to the requirement the development is built with similar materials to the house. (Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) schedule 2, Part 1, Class A)
17. A restrictive covenant is a binding condition written into a property’s deeds or contract to decide what the property owner can or cannot do with their property or land in particular circumstances. They are a private matter over which councils have no authority. Councils do not need to take account of the existence of restrictive covenants when considering planning applications as they are not a material planning consideration.
18. The planning application process looks at the principle of the development and whether it is acceptable in planning terms. It does not provide a mechanism to decide boundary disputes and a grant of planning permission does not give someone any right to build on land they do not own. Boundary disputes are private matters. An individual can seek a determination under the Party Wall Act 1996. 
19. The 45-degree code is used when councils consider planning applications for new buildings and extensions to existing properties which might affect the outlook from or daylight to a nearby house or flat. An extension should not exceed a line taken at 45 degrees from the centre of the nearest ground floor window of a habitable room in an adjoining property.
20. Decisions made by officers using delegated powers are controlled by the Openness of Local Government Bodies Regulations 2014. The 2014 regulations require that certain decisions and their background papers are publicised on council websites, as soon as is practicable after the decision is made. The 2014 regulations apply to a decision delegated to an officer if it grants a permission or licence or affects the rights of an individual.

Legislation and guidance: use classes

21. The Town and Country Planning (Use Classes) Order 1987 (as amended) puts uses of land and buildings into various categories known as 'use classes'.
22. Class C3 covers houses and has three parts:
• C3(a) covers use by a single person or a family, an employer and certain domestic employees, a carer and the person receiving the care, and a foster parent and foster child;
• C3(b) covers up to six people living together as a single household and receiving care e.g., supported housing schemes such as those for people with learning disabilities or mental health problems; and
• C3(c) allows for groups of people (up to six) living together as a single household.
23. Supported housing is any housing scheme where accommodation is provided alongside care, support or supervision to help people live as independently as possible in the community.
24. Planning permission is usually required to change a use from one class to another.

Legislation and guidance: planning enforcement

25. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• carrying out development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
26. 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 with developers.

Legislation and guidance: statutory nuisance

27. Statutory nuisances are defined in section 79 of the Environmental Protection Act 1990 (EPA 1990). They include:
• smoke emitted from premises so as to be harmful to health or a nuisance; and
• fumes or gases emitted from premises so as to be harmful to health or a nuisance.
28. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. To be considered a statutory nuisance, they must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
• injure health or be likely to injure health.
29. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The council should consider the type, duration, intensity and location of a nuisance when deciding if it is a statutory nuisance.

Birmingham complaint procedure

30. The Council has a two-stage procedure:
• Stage one - The directorate that provided the service will investigate the complaint. It will respond within 15 working days.
• Stage two - An independent Council officer will review the complaint. It will respond within 20 working days.

What happened

31. This section includes key events in this case and does not cover everything that happened.
32. The owner of Property 1 made a prior approval application in February 2017. The Council told Property 1’s neighbouring properties and gave them three weeks to raise objections. The Council did not receive any objections to the application. The Council decided no prior approval was needed. It confirmed this with the owner of Property 1. It said the materials he used in any exterior work needed to be of a similar visual appearance to those used in the exterior of the existing house. The Council told the developer he had to complete the works by 30 May 2019.
33. The Council visited the site in September 2019 to investigate an anonymous report of an alleged breach of planning. The owner of Property 1 had erected a rear dormer and the extension was deeper than shown on the plans he submitted for prior approval. The Council decided it would not be expedient to take enforcement action against the rear dormer because, although the materials used did not match the existing exterior of the house, they were a similar colour. It noted it would need to visit the site again to consider whether the extension breached the 45-degree code.
34. The owner of Property 1 applied to install a footway crossing in September 2020. The Council told Property 1’s neighbouring properties. The Council did not receive any objections to the application. The Council decided the footway crossing would not have any adverse impact on the amenity of Property 1’s neighbours. The Council approved the application subject to conditions in December 2020.
35. In March 2021, the Council revisited the enforcement investigation it started in September 2019. It decided it would not be expedient to take action against the owner of Property 1 for building an extension deeper than the plans because the harm it created was limited. It explained the extension splayed away from the rear window of the neighbouring property reducing the impact on the light to this window and the 45-degree code breach.
36. In April 2021, Ms B and another resident, Ms C, complained to the Council about an alleged change of use of Property 1. The Council visited the site. It decided Property 1 was being used for supported living, category C3(b), and therefore there was no change of use.
37. In May 2021, Ms B reported to the Council’s environmental health department the builder working at Property 1 was having weekly bonfires. She said this caused air pollution and prevented her from using her garden or opening her windows. The Council raised this with the owner of Property 1 in June 2021 and advised him not to burn commercial waste and to refrain from burning garden waste. There were no further reports of bonfires at Property 1 or 2. The Council closed its investigation as the owner of Properties 1 and 2 complied with its advice.
38. The owner of Property 1 bought the house next door, Property 2.
39. Ms C reported to the Council in June 2021 that Property 1’s rear decking and patio overlooked her garden. The Council visited the site. The Council found no problem with the height of the patio. It decided although the decked area did need planning permission it was not expedient to take enforcement action. The Council noted the owner of Property 1 had erected screening to reduce overlooking. The Council spoke to the owner of Property 1. He said he was happy to remove the screening if Ms C preferred. The Council told Ms C it would not be expedient for it to take enforcement action. It said it could talk to the owner of Property 1 about removing the screening if she wanted.
40. In July 2021, Ms B and other complainants met with their councillors to complain about Property 1 and the Councils failure to take enforcement action. They said they were concerned about the loss of family homes to a commercial enterprise, the potential lost garden space and the care received by residents. A Councillor raised this with the Council.
41. The Council responded to the Councillor in November 2021. It said there was no development or planned development to the rear of Property 1 and therefore no breach of planning control. It advised, the owner of Property 1 did not need permission to use it for supported living because this was not a change of use.
42. The complainants chased the Council for a response to their complaint in February and March 2022. The Council advised it sent responses to Councillors and residents following matters being raised about Property 1 in July 2021 and subsequently. It said it would send a comprehensive response in April 2022, which it did. In relation to this investigation, the Council said:
• It was not expedient for it to take enforcement action against the owner of Property 1 for the extra depth of the extension because it did not materially affect his neighbour.
• Boundary disputes were not a matter for the Council.
• The Council did not have control over ownership and covenants.
• Pre-applications are not published on the Council’s website.
• In 2017 prior approval applications were not published on the Council’s website, however, they are now.
• In 2017, the Council was not required to tell Property 1’s neighbours of his prior approval application.
43. The Council advised the complainants to contact the police or the community safety partnership if they were experiencing problems from the tenants of Properties 1 and 2.

Analysis

44. In 2017, the owner of Property 1 made a prior approval application for a rear extension under permitted development. The Council followed the correct procedure. It told the neighbouring properties and did not receive any objections to the application. Because the Council did not receive any objections, it did not need to assess the impact of the extension on the amenity of Property 1’s neighbours. Covenants and boundaries are private matters over which the Council has no authority, therefore it did not need to take these into account when considering the application. The Council correctly granted prior approval.
45. The was a delay in the Council concluding its investigation into the alleged breach of planning. It started its investigation into whether the extension was built according to the plans in September 2019 but did not decide whether to take enforcement action until March 2021. Although this delay was fault, it did not cause significant injustice because the Council decided it was not expedient to take enforcement action. I found no fault in the Council’s decision making and therefore cannot question the result of its investigation.
46. Property 1 and 2’s use category is class 3. These properties can be used for any activity covered under class 3. This includes supported living of up to six people living together as a single household receiving care. There was no change of use and no breach of planning and therefore the Council had no grounds to take any enforcement action.
47. The Council investigated Ms B and other resident’s reports of commercial waste being burnt at Properties 1 and 2. The Council advised the owner of the properties against burning waste and he complied. As the owner complied, there was no reason for the Council to take enforcement action.
48. Councils are required to publish decisions delegated to an officer if it grants a permission or affects the rights of an individual. The Council publishes documents for full planning applications on its website. However, in 2017 it did not publish prior approval applications on its website, this was fault. It has since added these to its website, remedying any injustice caused by its fault. The Council does not have to publish pre-application advice as this is advice only, not a planning decision.
49. Ms B and her neighbours raised concerns about Property 1 with their councillors in July 2021. One of the councillors raised this with the Council and it responded at stage one of its complaint procedure in November 2021. The complainants were in contact with the Councillor until March 2022. In March 2022, the complainants complained the Council had not responded to their complaint. The Council responded at stage two of its complaint procedure in July 2022. The Council’s response at stage one and two were late and these delays were fault. In addition, the Council was wrong to tell the complainants at stage two that in 2017 it was not required to tell Property 1’s neighbours about the prior approval application. These delays and misinformation caused Ms B and her fellow complainants frustration and put them to time and trouble chasing the Council.

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Agreed action

50. Within one month of the final decision, the Council will:
• apologise to Ms B and the complainants she represents for the delay in the Council’s complaint procedure.
• remind those involved in responding to complaints of the stage one and stage two response deadlines.
51. Within one month of the final decision, the Council will:
• review its procedure for investigating alleged breaches of planning to ensure these are completed without delay.
• review its procedure for responding to member enquiries. It should consider whether it should send responses to both the councillor and the person they are representing.
52. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

53. I have completed my investigation and uphold Ms B’s complaint. Ms B and her neighbours were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Parts of the complaint I did not investigate

54. I did not investigate the Council’s actions in relation to planning applications that were withdrawn, rejected, or actioned as they did not cause the complainants significant injustice and further investigation would not lead to a better outcome for the complainants.
55. I did not investigated concerns raised by Ms B and her neighbours about management of, or the service delivered by, the care agency leasing Property 1. Ms B and her neighbours have raised these concerns with the Care Quality Commission (CQC). The CQC is better placed to consider this part of their complaint.

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Investigator's decision on behalf of the Ombudsman