Summary: The Ombudsman found no fault on Miss E’s complaint of the Council failing to notify her of a planning application. The Council erected a site notice which brought it to her attention, allowing her to make representations. It also properly considered whether there had been a change of use of the shop. The Council failed to show it acted on a suggestion by a senior planning officer, kept Miss E updated, or promptly tell her the outcome of its investigation. It failed to deal with her complaint according to its own timeframe. The agreed action remedies the injustice caused.

The complaint

1. Miss E complains the Council failed to:
1. Notify her of a neighbour’s planning application;
2. Take prompt and effective enforcement action against the neighbour who installed an air conditioning unit to the side of the premises without planning consent;
3. Take prompt and effective enforcement action against the neighbour who operates late in to the night in breach of conditions; and
4. Deal properly with her complaint.
2. As a result, she is regularly disturbed by customers visiting the shop late in to the night and she is frustrated with the way the Council has dealt with her.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)

Back to top

Town and Country Planning (Use Classes) Order 1987 (as amended)

5. Where a building or land is used for the purpose of any class set out in the schedule, its use for any other purpose of the same class shall not be taken to involve development of the land. (Article 3(1))
6. Class A1 (shops) is use for listed purposes including, ‘for the retail sale of goods other than hot food’. (Schedule, Part A)
7. Class A3 (food and drink) is use for the, ‘sale of food or drink for consumption on the premises or of hot food for consumption off the premises’. (Schedule, Part A)
8. Changing from one use class to another usually means getting planning consent. Changes within the same use class is not needed when the existing and proposed use fall within the same ‘use class’.
9. Some changes from one use class to another are covered by permitted development rights which means consent is already deemed to have been given. To amount to permitted development, the proposals must meet the specific limitations and conditions set by the law. For example, A1 to A3 can take place up to certain area volume covered and subject to prior approval.

Back to top

How I considered this complaint

10. I considered all the information Miss E sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Miss E and the Council. I considered Miss E’s response.

Back to top

What I found

11. Miss E complains about the way the Council dealt with a nearby property’s planning application as it failed to notify her of it. She is also unhappy with the way it investigated her report of one unit’s use of selling ice-cream. She is now regularly disturbed by customers visiting it through the night until the early hours. In addition, she complains the Council failed to act against the owner of the building for installing an air conditioning unit which overhangs her neighbour’s yard.
12. The applicant received planning consent several years ago to develop the building (application 1). This was for a first and second floor extension with an apartment. The applicant sent another application a few years later with some revisions, including the location of an extractor unit (application 2). The Council granted consent.
13. The building has consent for several uses including: class A1 (retail); a beauty salon, which is currently unoccupied; class B2 (vehicle repairs), which is currently unoccupied; and class C3 (residential) for the upper floors. Consent for a hot food takeaway was previously refused.

Complaint a): notification procedure

14. As Miss E made representations on previous applications for this site, she claimed the Council assured her it would notify her of any future application. She did not receive a notification letter and only became aware of application 2 when she saw a site notice in the street. At this point, she only had a short time to send representations.
15. In response to my enquiries, the Council noted she is unable to say who gave her advice about future notifications. Although the original planning officer no longer works for the Council, it is not practice to notify those who made representations on previous applications. Interested parties can sign up for automatic alerts about sites through its website. Notification letters were sent to adjoining neighbours and it erected a site notice.
16. The Council also noted she sent representations about the proposal. In them, Miss E said the unit overhangs a neighbouring garden. She raised concerns about parking, late night noise nuisance, and arrangements for handling trade waste.
17. In the planning officer’s report, the overhanging air conditioning unit was considered a private issue. This was not the same unit considered by this application. The extractor unit proposed in this application was to the rear of the property above ground floor height.
18. Miss E also argued the Council failed to properly consider representations about the impact on residents’ amenities.

Analysis

19. I found no fault on her complaint about the notification process for the following reasons:
1. The law sets out the notification requirements for planning applications (The Town and Country Planning (Development Management Procedure) (England) (Order) 2015). For this type of application, the Council had to provide notification by:

• Site display in at least one place on or near the land to which the application relates for not less than 21 days; or
• By serving notice on any adjoining owner or occupier. (paragraph 15 (5) (a) and (b) The Town and Country Planning (Development Management Procedure) (England) (Order) 2015).
2. The Council said it sent notification letters to adjoining residents and provided an example of the ones it sent out. Miss E’s house is separated from the site by several houses. This means her house was not entitled to a notification letter.
3. The planning officer’s report confirmed notification was done by site display and neighbour notification letters.
4. The Council’s Statement of Community Involvement (2018) sets out how it will engage with the local community, for example, when considering planning applications. It states its preference is to publicise applications by site notice. It also says for householder applications, its preference is to send neighbour notification letters to adjacent residential properties. Where there is an industrial/commercial application, it will send neighbour notification letters to residential properties.
5. The Council only had to erect a site notice or send neighbour notification letters. It said it did both. While I have not seen evidence of the actual notification letters sent, the Council complied with the legal notification requirements by erecting a site notice. Miss E saw the notice which allowed her to make representations. She did not, therefore, lose the opportunity to make representations.

20. I found no fault on her complaint about an officer saying Miss E would be notified of future applications for this site. While I have no reason to doubt what Miss E says, there is simply no evidence of this contact which would justify a finding of fault.
21. I am satisfied the Council also considered the potential impact of the proposal on residents’ amenities. The planning officer’s report has a section titled, ‘Amenities of Occupiers of Adjacent Land’. The officer concluded the formation of an additional flat, and changes to the window arrangements, would not have an adverse impact on neighbouring properties. The application also allowed some of the works the applicant had already done following previous consent for a first and second floor extension with an apartment.

Complaint b): air conditioning unit enforcement

22. The extractor for the air conditioning unit extends over a neighbour’s front garden/yard. The unit is on the building’s wall running along the neighbour’s boundary. Miss E complains despite reporting this to the Council, it failed to ensure the owner moved it.
23. The Council explained its enforcement team has an ongoing case from 2017 about the unauthorised location of the unit. A revised planning application was granted in 2019 which included its relocation. As the unit remains in the wrong location, instructions are with the legal team about issuing an enforcement notice. Instructions were sent because of several matters that needed addressing including the location of the unit, alterations to the window and door, and the formation of an additional flat.

Analysis

24. While the Council has not sent evidence in support of what it says it has done, and is doing, about this breach of planning consent, I do not intend to pursue this complaint further. This is because even if there had been fault by the Council, I am not satisfied it would have caused Miss E a significant injustice. This is because her property is not next to the air conditioning unit. The unit does not overhang her garden. Any impact on Miss E’s property is limited because it is separated by several houses from the unit.

Complaint c): enforcement action

25. Miss E told the Council one of the units was now an ice-cream shop which allowed customers to eat in. The shop is open until the early hours of the morning which disturbs her and her neighbours. She is unhappy the shop can trade from this location and without any restrictions about its hours of operation.
26. The Council confirmed there are no conditions restricting the hours of operation of the retail unit. It accepted it refused a previous application for A3 restaurant use because of traffic problems (highway safety and residents’ amenity).

Analysis

27. The starting point is whether the unit can trade as an ice-cream shop at all. It is clear from the planning history for this site, that the unit has consent for class A1 use (retail).
28. The Council had to decide whether selling ice cream came within the type of use allowed by class A1. This is because class A1 covers shops and retail. Examples of the type of activity this class allows includes shops, hairdressers, and post offices, for example but, importantly, ‘the sale of sandwiches or other cold food for consumption off the premises’ where the sale, display or service is to visiting members of the public. (Schedule, Part A, Class A1, The Town and Country Planning (Use Classes) Order 1987)
29. Where a building is used for the purpose of any class set out in the Order, use of it for any other purpose of the same class shall not be taken to involve development of the land. (Article 3 (1) The Town and Country Planning (Use Classes) Order 1987)
30. When it became aware of the use, the Council had to investigate so it could reach a decision about whether the current use fell within the same use allowed under class A1. If it came within it, the Council did not need to consider taking enforcement action because the use was allowed. If it fell outside the use, the Council would need to decide whether it should take informal or formal action. This would range from suggesting the owner apply for planning consent or a lawful development certificate, for example, to taking legal action.
31. The Council’s website explains all complaints about a possible breach of planning control are dealt with according to its approved priorities. At the top of these priorities is, ‘matters concerning Health & Safety and significant nuisance (significant nuisance is defined as an activity, building or other structure which by its presence has, or is likely to have, an adverse effect on residential, working or visual amenity in the surrounding area).’
32. The website goes on to explain:

• the enforcement officer will consider whether the breach is permitted development, needs referring to another department or agency, whether a breach has happened at all, and whether conditional planning consent has been granted anyway;
• the officer will always try to negotiate a solution to the problem and try to persuade the contravener to voluntarily remedy the breach;
• the contravener is given 28 days to send information about the alleged breach; and
• the Council will keep the complainant informed of key decisions and told the outcome.

33. The Council was unable to provide a copy of any investigation report or formal decision officers reached on whether this shop came within use class A1. Instead, it provided copies of email threads between officers and the landlord of the building. These show:

• April 2019: a planning officer wrote to the owner reminding him to ensure this unit’s use was class A1 and warned an inspection would follow soon to check there was no planning consent breach. The owner confirmed he would speak to the tenants of the shop;
• June: the planning officer again wrote to the owner reminding him of the class A1 retail use. The officer noted for an ice-cream shop, this meant the public mainly buying ice-cream, or similar cold food for consumption, off the premises only. It should not be set out as a café and nor should the public be encouraged to eat in. The officer later replied to a query saying 1 or 2 tables were allowed which are secondary to the main retail shop use. If there are more than this, and it is clear customers are being invited to eat in, it is likely the Council would consider this a mixed class A1 (retail) and class A3 (café) or, wholly class A3, depending on the circumstances;
• July: a planning officer confirmed visiting the premises in the afternoon and seeing 6 barstools stacked on the bar at the window. The officer had a quick chat with the shop owner/assistant who said they mostly did takeout. The officer saw the shop displaying mainly cakes and ice-cream;
• The email was forwarded to a planning manager who said it looked like the shop would not need a change of use;
• Another officer agreed it was more of a class A1 use than class A5. The officer said perhaps a Lawful Development Certificate would be the best way forward. This is for when a person wants certainty an existing use of a building is lawful for planning purposes, or a proposal does not need planning consent. It is not compulsory to have one but, it can help confirm the use, operation, or activity named in it is lawful for planning purposes; (section 191 Town and Country Planning Act 1990)
• The manager asked the planning officer to write to the owners suggesting the Lawful Development Certificate might be the best approach.

34. The Council was entitled to reach its decision that the current use of the shop came within the examples of uses for class A1. Photographs received show there were bar stools in the shop and a narrow, high window bar style table. I am satisfied it was for officers to decide whether the shop was still mainly selling cold food to eat out. It was a decision they were entitled to make taking account all the circumstances. The Council can review the situation if it is sent evidence of the shop encouraging customers to eat inside, for example.
35. The evidence does not show the Council informed Miss E of its final decision about the shop's use. Nor does it show whether the Council asked the owner about the Lawful Development Certificate, what the owner said in response, and whether the Council then went on to decide if it needed to act or not. I consider this amounts to fault. The decision-making process was not as clear, therefore, as it should be. The injustice it caused to Miss E is the distress of not knowing whether it properly considered the need for the Lawful Development Certificate.
36. Under the Sunday Trading Act 1994, only large shops (over 280 square metres) have their opening hours restricted. As a small shop, this means it has no restrictions on opening hours.
37. If neighbours are regularly disturbed by this shop and its customers, they need to consider making noise nuisance reports to the Council’s environmental health team for it to investigate.

Complaint d): complaint procedure

38. Miss E is unhappy with the time the Council took to respond to her complaint.
39. The Council apologised to her for the delay and explained its complaints unit is small but, complex investigations can slow the unit down. It took 5 months to allocate the complaint for investigation.

Analysis

40. The Council’s complaints procedure consists of the following:

• Stage 1: if a person is unhappy with the attempt to informally resolve their complaint, they can ask for it to go to stage 1. It is dealt with by a more senior member of staff within the service area complained about. A response is usually sent within 20 working days;

Miss E sent her stage 1 request complaint to the Council in early April 2019. The Council responded early May. This was within its timescale; and

• Stage 2: If they remain unhappy after the stage 1 response, they can ask for an independent investigation by the complaints unit. This assesses if there are grounds for formal investigation. Formal investigations are usually responded to within 65 working days.

41. Towards the end of May, Miss E made her stage 2 request. The Council sent her its response in early November. This is about 5 months late. I am satisfied the delay at stage 2 amounts to fault which caused her injustice. It caused her distress as she was uncertain whether the Council was progressing her complaint and had to chase it for a response.
42. I have taken account of the action the Council has since taken to improve its complaints handling. It confirmed it employed 2 external investigators to help with the back log of cases which built up because of the small size of the complaint team and the volume of work they had. I also took account of its apology for the delay with the complaint process.

Agreed action

43. I considered our guidance on remedies.
44. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Miss E a written apology for failing to; send her written confirmation that it had reached a decision about the use of the shop and the reasons for that decision; act on the suggestion of contacting the owner about the possibility of making an application for a Lawful Development Certificate;
2. Act to make sure officers are reminded of the need to send those reporting breaches confirmation of the final decision in writing which also explains the reason for the decision;
3. Remind officers of the need to either act on suggestions made by senior officers, such as applying for a Lawful Development Certificate for example, or have a record showing why this was not done; and
4. Pay Miss E £200 for the distress caused by the identified fault.

Back to top

Final decision

45. The Ombudsman found fault on Miss E’s complaint against the Council. The agreed action remedies the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman