Summary: Mrs X complained about the Council’s handling of her neighbour’s retrospective application for a Certificate of Lawful Existing Use or Development. Mrs X also complained about the Council’s handling of her nuisance complaints and inaction by the Council’s building control team. We found fault with the Council for failing to review Mrs X’s noise nuisance diary sheets. We also found fault with the Council failing to attend to witness an alleged light nuisance causing three months of delays in handling her complaints. The Council agreed to apologise to Mrs X for this fault.

The complaint

1. Mrs X complained about the Council’s handling of her neighbour’s retrospective application for a Certificate of Lawful Existing Use or Development. Specifically, Mrs X complained about the Council failing to consider evidence, failing to advance to committee on request by the Town Council and failing to follow its procedures.
2. Mrs X also complained about the Council’s handling of her nuisance complaints about the same site as well as delays and inaction by the Council’s building control team.

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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. 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)
5. 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

6. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response. I have also considered the original planning applications, the planning officer’s report and decision notice.
7. Mrs X and the Council provided comments on my draft decision which I considered before making my final decision.

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What I found

Planning applications

Regulations

8. Section 191 of the Town and Country Planning Act 1990 enables any person to ascertain whether:
• Any existing use of buildings or other land is lawful.
• Any operations which have been carried out are lawful; or
• Any failure to comply with a planning condition or limitation is lawful.
9. This means that a development can be certified as lawful because there has been no breach of planning control, or because the time to take enforcement action has expired.
10. If the local planning authority (in this case the Council) is provided with information satisfying them the use or operations would be lawful if instituted or begun at the time of the application, they must issue a certificate to that effect.
11. Evidence may be required to resolve disagreement over questions of fact. The lawfulness of the use or operations must then be “conclusively presumed” unless there is a material change before the use is instigated or the operations begun.
12. The application for the certificate is determined on the facts available although it is for the Council to decide whether the evidence available is enough to allow it to decide one-way or the other. If a local planning authority has no evidence itself, nor any from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate on the balance of probability.

Council’s policies

13. The Council’s guidance on providing representations in response to planning applications details that a person can provide representations by using the online link, by letter or by emailing its main planning team inbox. The Council asks that a person provides representations through one of these three methods so it can ensure that it allocates these to the relevant case and considers the comments.
14. The Council should consider any material planning consideration raised in response to a planning application.
15. Under Schedule 15 of the Responsibility for Functions section in the Council’s constitution, a “Local Member” may make a written request for consideration of a planning application by a committee if they disagree with a planning application.
16. If a “Local Council” disagrees with a planning application the Council should follow its Protocol for Local Councils. The Protocol for Local Council’s gives “Local Councils” five extra working days to consider or resolve issues and provide a final response to the case officer.
17. First the Council Officer should contact the “Local Council” to see if they can resolve the disagreement to reach a decision. This starts the five working day timescale for “Local Councils”.
18. If the “Local Council” and Case Officer cannot resolve a disagreement the “Local Council” has two choices available. The “Local Council” can either “agree to disagree” and continue to acceptance of the decision or request the application goes to the planning committee. If the “Local Council” requests consideration by the planning committee the Head of Service will exercise their discretion about whether to advance to the planning committee. An application cannot go to the planning committee it at least one of the following is met:
• it would be unreasonable to make any other decision to the one being recommended
• the proposal is considered to be a non-material amendment to either an existing permission or development
• it is time critical the application is determined such as when considering prior notification applications

Consideration – Summerhouse decision

19. Following submission of the application for Certificate of Lawful Development for the Summerhouse in February 2022, the Council granted the application in October 2022.
20. The delegated report on the application for Certificate of Lawful Development is detailed. It includes information from Mrs X and the applicant.
21. Mrs X complained the delegated report did not consider comments from another neighbour, Mrs Z. Mrs Z said the Summerhouse had moved locations since 2006 and was now a larger size than previous. Mrs X passed Mrs Z’s comments directly to a case officer on 20 August 2022. This case officer was not handling this planning application.
22. This case officer sent the information on to the relevant case officer for the planning application who did not register the information on the case. This is the reason the Council did not consider these comments. Mrs Z did not provide her comments to the Council in any of the allowed mediums detailed by the Council. As a result of this, the Council failed to consider Mrs Z’s comments.
23. Nonetheless, the Council has admitted fault for failing to consider these comments in the delegated report and apologised in its Stage 2 complaint response. I agree the Council should still have considered the representations and would agree with this finding of fault.
24. Mrs Z’s comments brought into question the accuracy of the applicants statements about the location of the Summerhouse since 2006. While Mrs Z has provided comments, Mrs Z did not provide any evidence to support these comments. The applicant’s comments were supported in the form of two separate Statutory Declarations, which hold added weight to normal comments.
25. The Council must be satisfied, on the balance of probabilities, the development operated on the same piece of land for at least 10 years before the application to be immune from enforcement proceedings. The Council made its decision based on the balance of probabilities and Mrs Z’s comments, unsupported by evidence, would not have resulted in a different outcome. As such, the fault in not considering Mrs Z’s comments has not presented a significant personal injustice as it would not have resulted in a different outcome.
26. Notwithstanding the failure to consider Mrs Z’s comments, the delegated report explains what weight it has given to conflicting evidence and why. The Council Officer’s report also shows consideration of “Google images”. This is not a planning application and therefore the Council cannot consider the merits of the application.
27. The Council is satisfied the residential annexe is lawful and immune from enforcement action as it has been in place for more than 10 years. As noted above, Mrs Z’s comments would not have persuaded the Council otherwise.
28. I have seen no evidence of fault in the way the Council considered the Certificate of Lawful Development application.

Consideration – Summerhouse Protocol for Local Councils

29. Mrs X complained the Council failed to advance to committee for the Summerhouse planning application despite a request from a councillor. Mrs X also complained the Council failed to allow the full five working days from its Protocol for Local Councils.
30. In May 2022, the Council confirmed to Mrs X that should a councillor disagree with a Council Officer’s recommendation, the councillor can call the application before committee to consider the application.
31. In response to the planning application, Camelford Town Council raised objections. The Council needed to follow its Protocol for Local Councils in this instance.
32. The Case Officer contacted Camelford Town Council on 30 September 2022 to see if it could resolve its disagreement about consideration of the matter. This started the five-working day timescale for Camelford Town Council to provide its response. Camelford Town Council requested the application be considered by the planning committee on 3 October 2022. Since Camelford Town Council presented its position on 3 October 2022, the Council did not need to wait the full five working days. I do not find fault with the Council.
33. The Council’s Development Management Group Leader, as the nominated officer, considered Camelford Town Council’s request and decided “it would be unreasonable to make any other decision than approval” when considering the evidence. The evidence shows, the Head of Service discussed this matter with the Cornwall Councillor who confirmed would not be formally requesting this matter to go before committee.
34. The Council followed its Protocol for Local Councils and made a decision not to proceed to committee based on its protocol. The Council followed the correct process and was entitled to reach this decision; I do not find fault.

Consideration – Tepee

35. Following submission of the application for Change of Use of land for the tepee in December 2021, the Council has yet to make a decision on this application.
36. The Ombudsman cannot prejudge a Council’s decision on a planning application. The Council’s decision on this planning application is outside the remit of the Ombudsman.

Planning enforcement

Regulations

37. Councils can take enforcement action if they find a developer has breached planning rules. However, councils do not have to take enforcement action just because there has been a breach of planning control.
38. 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 2012, paragraph 207)

39. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
40. Council’s often invite developers to submit retrospective planning applications so the impact of the development can be properly considered.

Council’s policy

41. When a person reports a breach of planning control the Council will log a complaint to decide what action to take.
42. If the Council cannot prove breaches of legislation, it will take no action.
43. If the Council finds a breach of planning control but does not consider the breach serious, and the history of compliance is good, it can take informal action. This includes a verbal or written warning or advice.
44. Informal action is the first stage of the Council’s enforcement action. The Council’s policy says it will try to resolve issues in the first instance without the need for formal notices.
45. Stage two of the Council’s process is to issue a written notice that it intends to issues a statutory notice. This written notice will detail what work it considers a person should take to put a building control matter right. The Council will allow a time period for compliance before issuing a formal statutory notice.
46. If the Council finds a serious breach of planning control, or there is a history of non-compliance, the Council may serve a statutory notice. Even when the Council issues a statutory notice, its policy says it will give a person opportunity to discuss the breach unless there is a need for immediate action. This is stage three of the Council’s process.
47. At stage four and five, the Council will work towards prosecution. This is a route available to the Council following non-compliance with a statutory notice.

Consideration – Enforcement Case 1

48. In July 2021, Mrs X complained about her neighbour renting out a Summerhouse and a tepee without planning permission.
49. The Council investigated Mrs X’s concerns and found what it believed to be a breach of planning control
50. In August 2021, the Council issued a Planning Contravention Notice to Mrs X’s neighbour. The Council required Mrs X’s neighbour to provide it with information about the summerhouse and tepee within 21 working days. The Council asked for information including construction dates of the structures and the nature and use of the structures.
51. The Council investigated Mrs X’s concerns and on finding a potential breach of planning enforcement issued a Planning Contravention Notice to seek further information. The Council has acted in line with its policy and I do not find fault with the Council’s response to Mrs X’s planning enforcement case.
52. Mrs X’s neighbour responded to advise they built the summerhouse in 2006 and had been using this as a holiday let since 2017. The neighbour also advised they built the tepee in July 2021 and had been using this as a holiday let since this point.
53. Following discussions with the Council, Mrs X’s neighbour agreed to submit a Certificate of Lawful Development for use of the summerhouse. The Council advised it would consider this application but they also needed planning permission if they used the tepee for more than 56 days of the year. The Council said they should remove the tepee by 17 September 2021 to prevent a breach of the notice.
54. In October 2021 Mrs X complained the tepee remained in place. The Council contacted her neighbour who provided a photograph showing they had removed the tepee and its associated structure.
55. The Council took informal action in the first instance to seek submission of a Certificate of Lawful Development for the Summerhouse and a negotiated removal of the tepee subject to planning permission. The Council ensured Mrs X’s neighbour removed the tepee and took suitable steps in line with the enforcement policy. I do not find fault with the Council.
56. Mrs X’s neighbour submitted a Change of Use of land planning application for the tepee in December 2021 and an application for Certificate of Lawful Development for the summerhouse in February 2022. The Council told Mrs X its enforcement case was on hold pending the outcome of the planning applications.
57. The Council monitored the situation through to submission of the planning applications. Mrs X’s neighbour submitted the relevant applications as instructed by the Council. The Council’s actions were proportionate to the issues and in line with its policy, I do not find fault.

Consideration – Enforcement Case 2

58. In November 2021, Mrs X complained to the Council’s building control team about excessive noise, light and air nuisance from the Summerhouse being let out.
59. The Council failed to log Mrs X’s contact correctly and only picked up her complaint in June 2022. This was fault by the Council causing a delay of seven months. The Council has accepted that it failed to act in response to Mrs X’s contact in November 2021 and has already apologised to Mrs X.
60. In June 2022, the Council attended the neighbour’s property and confirmed the summerhouse was on site and advised the summerhouse may require a planning application. Mrs X’s neighbours confirmed they had already submitted a planning application to regularise the Summerhouse which was awaiting a decision.
61. While the Council failed to complete a site visit in November 2021, this had no impact on the overall situation. Mrs X’s neighbours had submitted a planning application in February 2022 and this was awaiting a decision. The Council decided to approve the planning application in October 2022 resulting in no further action needed from the Council’s building control team. The Council would have taken the same action whether the site visit happened in November 2021 or June 2022. The Council’s fault presented no injustice to Mrs X.

Consideration – Enforcement Case 3

62. In August 2022, Mrs X complained to the Council about use of the tepee.
63. The Council wrote to Mrs X’s neighbour to advise if they did not remove the tepee within 5 working days it would progress to an enforcement notice.
64. Mrs X’s neighbour did not remove the tepee. The Council issued an enforcement notice to Mrs X’s neighbour in September 2022 which took effect from 20 October 2022. This enforcement notice told Mrs X’s neighbour to remove the tepee and its associated structures within six months of 20 October 2022.
65. Since Mrs X’s neighbour is still within the six months timescale of the enforcement notice, there is no further action the Council can take. The Council has followed its policy and I do not find fault.

Consideration – Enforcement Case 4

66. In November 2022, Mrs X reported to the Council that her neighbour’s were using the Summerhouse outside the terms granted in the Certificate of Lawful Development.
67. In December 2022, the Council issued a Planning Contravention Notice to Mrs X’s neighbours seeking information from her neighbours. The Council sought information about when the summerhouse had been let.
68. In January 2023, the Council confirmed Mrs X’s neighbours had removed the summerhouse from it platform and from being let out. The Council confirmed this with Mrs X who agreed. The Council arranged a site visit to confirm this.
69. The Council took suitable steps in line with its policy and resolved the matter to Mrs X’s satisfaction. I do not find fault with the Council.

Nuisance complaints

Statutory Nuisance

70. The Environmental Protection Act 1990 (EPA) places a duty on the Council to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other property
• Injure health or be likely to injure health
71. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
72. The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must take action to stop it.

Council’s policy

73. The Council’s policy on investigating statutory nuisance sets out the procedure it should follow when investigating complaints about statutory nuisance. While the Council sets out a procedure it outlines that its staff can use professional judgement to diverge from this procedure when they consider it is needed.
74. The Council’s procedure says that on receiving a complaint it will raise a service request and allocate this to an investigating officer. The investigating officer should then aim to contact the complainant within 3 working days. The investigating officer will gain further information about the complaint and advise of the next steps.
75. If the complaint is about a statutory nuisance, the Council will send diary sheets to the person complaining to fill out and return.
76. On receiving the diary sheets the investigating officer will assess the information and decide if the alleged nuisance is indicative of a statutory nuisance.
77. If the Investigating Officer decides the diary sheets do not indicate a statutory nuisance they should tell the person and close the case. The Council will allow a person two further opportunities to demonstrate the same statutory nuisance through provision of diary sheets.
78. If the Investigating Officer considers the diary sheets are indicative of a statutory nuisance they will take further steps to investigate. These steps can include attending to witness the nuisance and/or installing noise monitoring equipment. If the Investigating Officer cannot witness all statutory nuisances other than noise in a maximum of three visits they should close the case. An Investigating Officer may close a case before completing three visits if they are satisfied a statutory nuisance does not exist after visiting the site at a “representative time”. For noise, the Council should arrange installation of a noise monitoring device if the person says the noise is continuing.
79. If the Investigating Officer has not been able to substantiate a noise nuisance after two separate installations they should close the case.
80. If the Investigating Officer has been able to witness or substantiate a statutory nuisance, on the balance of probabilities, the Council must serve an abatement notice.

Consideration

81. In November 2021, Mrs X contacted the Council to report noise nuisance, air pollution and light nuisance from her neighbour's property. Mrs X said the cause of this nuisance was a summerhouse her neighbour had converted into a self-enclosed property and was renting out.
82. The Council responded to Mrs X and advised her to provide diary sheets. The Council explained its process to Mrs X who said she would monitor the situation and return to the Council.
83. Mrs X did not provide diary sheets so the Council closed the case. The Council acted in line with its policy and I do not find fault.
84. In May 2022, Mrs X contacted the Council about her neighbour burning wood close to her property. The Council explained that burning of wood could be considered normal use for the property but it needed to decide the outcome of the planning enforcement case to take further action on this matter.
85. The Council acted correctly to use its discretion and advise the outcome of this nuisance complaint rested on the outcome of the planning enforcement case. Without confirmation of the authorised use of the premises, the Council could not act against this nuisance. The Council assessed Ms X’s complaint on the circumstances involved and made a decision not to progress further. The Council was entitled to make this decision and I do not find fault.
86. At the start of July 2022, Mrs X complained to the Council about light nuisance. A Council Officer attended the property during the day and took photographs of the lights. The Council Officer decided these lights would not cause a statutory nuisance.
87. The Council followed its process by logging Mrs X’s complaint about light nuisance and attending her property to establish if it could witness a light nuisance. Since the investigating officer could not witness a light nuisance it closed the case. The Council acted in line with its policy and I do not find fault.
88. At the end of July 2022 and start of August 2022, Mrs X raised four separate complaints with the Council about noise, light and smoke nuisance. Mrs X provided photographs of the light nuisance at night for the Council’s reference.
89. The Council advised Mrs X the light nuisance was not a statutory nuisance as per the visit at the start of July 2022. The Council provided Mrs X with diary sheets to complete for the noise and smoke nuisance.
90. The Council had not received any diary sheets from Mrs X up to August 2022 and followed its process by requesting that Mrs X provides diary sheets for the noise nuisance. The Council has followed its process and I do not find fault.
91. The Council’s process says it will try to visit a site three times for an alleged statutory nuisance, such as light, before closing a matter unless it confirms there was no statutory nuisance. The Council had only visited Mrs X’s property once before this contact but had confirmed there was no statutory nuisance. Since the Council had confirmed no statutory nuisance it had acted in line with this part of its policy. However, the Council attended Mrs X’s property during the day despite the light nuisance being an issue at night. This meant the Council had not visited at a “representative time”. The Council should have attended Mrs X’s property at night to try to witness the light nuisance in this instance. The Council failed to follow its policy and this was fault.
92. Mrs X told the Council she had completed diary sheets and told the Council the light nuisance was persisting. The Council asked Mrs X or copies of her diary sheets. Mrs X provided diary sheets of noise nuisance and smoke nuisance on 19 August 2022. The Council failed to act on these diary sheets or try a further visit to witness the light nuisance at a more “representative time”.
93. Mrs X provided more diary sheets to the Council on 30 October 2022 before contacting the Council on 6 November 2022 to request an update on her complaints. On 10 November 2022, the Council promised to review the diary sheets.
94. The Council was at fault for failing to review Mrs X’s diary sheets when she provided these in August 2022. The Council was also at fault for failing to try a further visit to witness the light nuisance. This fault resulted in a missed opportunity to witness or substantiate potential statutory nuisances and caused a delay of three months in handling this matter.
95. On 24 November 2022, the Council advised Mrs X it considered the best option, following review of the diary sheets, was to install noise monitoring equipment into Mrs X’s property.
96. Mrs X responded to advise the noise monitoring equipment installation was pointless at this time of year but the light nuisance issues continued. The Council responded to ask when would be suitable to arrange a visit to witness light nuisance. Mrs X said a visit would be pointless as further bookings at the summerhouse had been cancelled on Airbnb.
97. The Council took correct steps in line with its process to offer installation of noise monitoring equipment for the alleged noise nuisance and a visit to witness the light nuisance. The Council acted correctly and I do not find fault. It was Mrs X’s decision not to progress with either of these options in December 2022.

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Agreed action

98. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology for the delays of three months in handling the statutory nuisance complaints by failing to review the noise nuisance diary sheets and failing to attend to try to witness the light nuisance.
99. The Council should provide us with evidence it has complied with the above actions.

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Final decision

100. There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman