Summary: Mr D complains the Council failed to take planning enforcement action and did not properly consider a retrospective planning application for a change of use next to his home. We have found that delay in determining the application caused Mr D an injustice. The Council has agreed to make a payment to acknowledge this. There was no fault in the enforcement or way the Council determined the application.

The complaint

1. Mr D complains the Council failed to take enforcement action against a breach of planning control at a neighbouring property from 2018 to 2020 and failed to respond to his correspondence and complaints.
2. He also complains about the Council's approval of the retrospective planning application in December 2020. In particular he complains:
• the development was not accurately described
• information relevant to the planning application was not published
• no noise assessment was carried out and the impact on his amenity was not properly considered
• officers misled the planning committee
3. As a result, Mr D says he has suffered significant noise, light pollution and transport safety issues.

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The Ombudsman’s role and powers

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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

8. I spoke to Mr D about his complaint and considered the information he sent including videos, the Council’s response to my enquiries and the webcast of the relevant planning board meeting.
9. Mr D 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

Planning permission

10. The Town and Country Planning Act 1990 gives councils the power to decide if planning applications should be approved, refused or approved subject to planning conditions. Councils decide applications considering their development plan and must decide the application under the plan unless any other material considerations suggest otherwise. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons.
11. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include supplementary guidance, planning history, views of consultees and issues specific to the application. It is for the decision maker to decide the weight to be given to any material consideration in deciding a planning application.
12. The case officer’s report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
13. Once a planning application has been validated, the council should make a decision within the statutory time limit unless a longer period is agreed in writing with the applicant. The statutory time limits are usually 13 weeks for applications for major development and 8 weeks for all other types of development. Where a planning application takes longer than the statutory period to decide, and an extended period has not been agreed with the applicant, the Government’s “planning guarantee” is that the decision should be made within 26 weeks.

Publishing planning documents

14. The Town and Country Planning (Development Management Procedure) (England) Order 2015 specifies how planning applications should be publicised and what information the council must publish on its website.
15. In line with this, the Council publishes on its website all forms, drawings, plans and reports submitted as part of the planning application and any revised drawings that are received during the determination period. It also publishes all comments of support or objection from neighbours, consultee responses, the officer’s report and the final decision.

Certificates of lawfulness of existing use or development (CLEUDs)

16. Section 191 of the Town and Country Planning Act 1990 enables any person to ascertain whether:
• Any existing use of buildings is lawful
• Any operations which have been carried out are lawful or
• Any failure to comply with a planning condition or limitation is lawful.
17. This means that a particular development or use of land can later be certified as lawful even if it was unlawful at the time it was carried out. A successful application will lead to the issue of a certificate. The applicant for a CLEUD must show that no enforcement action may be taken in respect of the use or operation, either because it did not constitute development in the first place, did not require planning permission, or because it is immune from enforcement action. The onus of proof is on the applicant and the evidential test is on "the balance of probability".

Planning enforcement

18. A breach of planning control is defined as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
19. Where there has been a breach of planning control, councils may take enforcement action when it is ‘expedient’ to do so. It is for the council to decide whether it is expedient to take action. Government guidance says “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)
20. Councils have a choice of different enforcement options so as to secure a satisfactory remedy for a breach of control. These include taking informal action, inviting a retrospective application to regularise development which has already been undertaken, and issuing an enforcement notice.

Statutory nuisance

21. Under the Environmental Protection Act 1990 councils have a duty to investigate noises which may cause a statutory nuisance to residents within its area. For a noise to count as a 'statutory nuisance' it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• Injure health or be likely to injure health
22. Any statutory nuisance must be witnessed by an Environmental Health Officer and, in the officer's independent judgment, seriously interfere with the person's ability to live normally. The officer will come to an independent judgment taking into account the type of nuisance, its duration, intensity and location to decide whether a statutory nuisance exists.

The Council’s complaints procedure

23. The Council has a two-stage complaint procedure. At stage one a senior officer in the service being complained about handles the complaint. The Council aims to resolve the complaint within 10 calendar days.
24. Where a complainant is unhappy with the stage one response they can appeal. At stage two a group manager normally reviews how the complaint was handled. A full response is provided to the complainant within 10 calendar days of the complaint being escalated. If the Council cannot provide a response within 10 calendar days it will tell the complainant when they can expect a full response.

What happened

Background

25. In 2014 Mr D applied for change of use of an outbuilding to an office ancillary to main residential use. This was approved and Mr D developed his outbuilding into a home office/studio. The approval contained a condition that the building “shall not be occupied at any time other than for purposes ancillary to the residential use of [Mr D’s home]; and shall not be occupied as a separate dwelling unit.”
26. Mr D’s office/studio is eight metres from an agricultural barn belonging to his neighbour, Mr M. Mr D says the barn was used as a stable and storage but in 2014 a small business moved in to part of it. In 2015 Mr M developed the barn to create several units which were used for businesses.
27. Mr D complained to the Council in 2017 that there was a breach of planning control as Mr M’s barn was no longer used as an agricultural building. The Council’s planning enforcement officer investigated and the neighbour applied for a CLEUD to authorise B1 (light industrial) and B8 (storage) use. Mr D objected; he said the barn had only been used for those purposes since 2015. The CLEUD application was later withdrawn as Mr M was unable to evidence that the usage had been ongoing for over ten years.
28. In July 2018, following discussion with the Council, Mr M submitted a retrospective planning application for change of use. The Council’s planning enforcement records say it was “satisfied [this] is correct course.” Mr M submitted updated drawings for the application in November 2018.
29. Mr D commissioned a noise consultant who sent a report to the Council stating that as the barn was in a residential area the Council should request a noise assessment and noise management plan.
30. I have seen no evidence of any action being taken on the planning application until October 2019, when Mr M submitted updated drawings, or of any agreement with Mr M that the approval would take longer than the statutory timescale.

Mr D’s objections

31. In the meantime, Mr D sent objections to the application. He said it omitted information about access, car parking, and external lighting and there had been no noise assessment, which was required as the barn was very close to his office/studio which was a residential dwelling. Mr D said the barn was being used for metal working and joinery, which he considered were B2 activities and he asked the Council to take enforcement action. He also said the Council had materially misled consultees by mis-describing the change of use application as from B8 to B1, rather than from agriculture to B1.
32. The Council intended to consider the application at its Planning Board in December 2019, but the item was deferred as it was wrongly described as an application for proposed (rather than retrospective) change of use.
33. Mr M submitted updated plans in January 2020 which gave more details of proposed sound insulation. The Council carried out a new round of consultation on the application, amending its description.
34. Mr D submitted further objections, including that the sound insulation proposals were inadequate. He also noted that several of his letters, his videos of the noise from the barn, the noise consultant report and legal advice he had received had not been published on the Council’s website. The Council said it was unable to publish links to third party sites due to IT security.

The Council’s environmental protection assessments

35. The Council’s environmental protection officer objected to the application in April 2020 on the grounds that it did not sufficiently describe noise impacts on nearby residential property or the noise control measures that were needed.
36. An environmental protection officer visited the site in September 2020 to assess the noise and sound insulation that was being installed. They then submitted a revised response to the consultation. This said that Mr D’s office/studio was not a principal dwelling and as such:

“[it] does not represent a sanctuary afforded with the same expectations for a dwelling in terms of the nuisance provisions in our statutory functions. In effect we would suggest that there should be some expectation with regard to amenity but it is lower than for an independent dwelling. The insulation proposals are fair for the situation but need to be completed preferably prior to any consent being granted or within a short timescale and subject to condition to allow enforcement for non-compliance. This needs to extend to [a second unit in the barn].”

Determination of planning application

37. The Council’s Planning Board considered the planning application in December 2020. The case officer’s report included:
• a description of the proposal and the site
• a summary of relevant planning history
• comments from neighbours and other consultees, including the highways authority and environmental protection
• relevant planning policy and guidance, and
• an appraisal of the main planning considerations, including the objections that had been received, the impact on residential amenity, highway issues, and other matters such as flood risk and light pollution.
38. The application was approved subject to conditions, which included conditions relating to hours of operation, external lighting and sound insulation to protect the amenities of residents.

Mr D’s complaints

39. Mr D had complained to the Council in July 2020 that:
• there had been a delay in determining the application,
• the Council had failed to take enforcement action,
• the development was not accurately described,
• information relevant to the planning application was not published,
• no noise assessment had been requested.
40. In response, on 14 August 2020 the Council said the use class categories would be assessed when the application was considered and the matters Mr D had raised would be covered in the case officer’s report. The Council accepted there had been a delay in determining the application. This had been caused by staffing issues and the COVID-19 pandemic. It said the application would be considered in the autumn.
41. Mr D was dissatisfied and asked for his complaint to be escalated to the next stage. The Council replied on 23 September that the application would be considered in November 2020. Mr D complained to the Ombudsman.
42. After the Council approved the planning application, Mr D made a new complaint to the Council about the way the Board had considered the item. In particular, he considered the members had been misled and he asked the Council to seek a judicial review of the decision. Mr D also complained that the Council had prejudiced the outcome of the Ombudsman’s investigation by determining the application.
43. The Council replied to Mr D in February 2021 to say it could not seek a judicial review of its own planning decision. It also said it had no further comments on his new complaint as it overlapped his previous complaint and the matter was now with the Ombudsman.

My findings

44. Mr D is concerned that the Council’s determination of the planning application may have prejudiced our investigation. We cannot normally consider a complaint about an application until a decision has been made. This is because we cannot establish if there has been any fault in the consideration of the planning application until the council has considered it and made a decision. In addition, if there is fault we do not know until that point whether it affected the outcome. I therefore do not find any fault in the Council’s decision to consider the planning application whilst my investigation was ongoing.

Planning enforcement

45. Mr D complains the Council has failed to take enforcement action since 2017. We normally do not investigate matters which a complainant has been aware of for more than twelve months before approaching us. However, I have used my discretion to consider the events of 2017 and 2018 because the subsequent planning application was only determined in 2020.
46. When Mr D reported a possible breach of planning control by Mr M in 2017 the Council visited and spoke to Mr M. It agreed that Mr M should apply for a CLEUD. When this application was withdrawn, the Council considered a retrospective planning application for change of use was appropriate. This is a decision it was entitled to make. Councils are not obliged to take enforcement action and they are able to seek applications to regularise unauthorised development. I have seen no evidence of fault in the way the Council considered the matter so I cannot criticise its decision to allow a retrospective planning application to be made. I do not find any fault in the Council’s planning enforcement.

Delay in determination of the planning application

47. There was delay by the Council in determining Mr M’s retrospective planning application. The application submitted in July 2018 should have been determined by January 2019. I have seen no evidence of any action being taken on the planning application from November 2018 until October 2019, or of any agreement with Mr M that the approval would take longer than the statutory timescale. That was fault.
48. Mr M submitted new plans in January 2020. The Council re-consulted but did not determine the application until December 2020. I appreciate this was in part due to staffing problems caused by COVID-19 but I have seen no good reason why the environmental protection officer did not visit the site until September 2020. In addition, the application had already been outstanding before the Government announced the first national lockdown in March. I find therefore that it was fault for the Council to not prioritise the application after January and determine it by May 2020.
49. I have considered whether this delay has caused significant injustice to Mr D. Although he was objecting to the application he did not benefit from its lack of approval as the usage causing the noise was already happening. I realise Mr D considers the proposed sound insulation insufficient. Nonetheless, but for the delay the sound insulation that was conditioned would have been installed sooner. He has therefore had to live with the uninsulated noise for longer than necessary. This is his injustice. The Ombudsman’s Guidance on Remedies says if fault has caused delay in dealing with a statutory nuisance, we will usually recommend a payment for loss of amenity in the range of £75 to £350 a month. However, I must take into account that the noise has not been determined to be a statutory nuisance.

Consideration of the planning application

50. Mr D complains about several issues in relation to the Council’s consideration of the planning application. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. My role is to determine whether there has been administrative fault in the way a decision was made. I have therefore considered the relevant planning documents and have viewed the Planning Board meeting.
51. When the application was initially put to the Board in 2019, it was withdrawn from the agenda as it was wrongly described as a proposed use, rather than retrospective. But this is not evidence of fault in the way the Council considered the application in 2020.
52. Mr D complains no noise assessment was carried out and says the environmental protection officer’s visit in September 2020 was inadequate. I understand that Mr D considers the barn’s use to be industrial (B2) and that, as his office/studio is a residential dwelling, there should have been a noise impact assessment. However, that was not the matter that was before the Council. The application was for B1 use, and the Council considered that as the office/studio could not be used as an independent dwelling it did not require the same level of protection as a residential dwelling.
53. Nor have I seen evidence that a particular noise assessment was required. The Council’s development plan policy on noise (DP8) says that development proposals will need to consider likely noise levels with the aim of reducing these to a minimum and mitigating against any residual impacts. But it does not specify a method of noise assessment. This means it is for the Council to determine how it will consider the noise and take that into account when determining the application. It decided the environmental protection officer’s assessment was sufficient. That is a decision it was entitled to make and I find no fault in the way this decision was made.
54. Mr D complains the Board was not made aware that the environmental protection officer had initially objected to the application, but this was not relevant to their decision. They had before them the updated view of the officer, who spoke at the meeting.
55. I have seen the videos Mr D made of the noise from the barn and can see that there is drilling and sawing noises next to his office/studio. However it is not for me to determine whether the noise is acceptable or to say whether or how it should be controlled. The Board was aware of Mr D’s concerns about the noise and the adequacy of the sound insulation and some members also had concerns. But they were entitled to accept the officer’s view that the proposed sound insulation was sufficient. This meant it was not therefore possible for them to seek a condition requiring more sound insulation than had been deemed sufficient, as this would be unreasonable.
56. Mr D says officers misled the planning committee, in particular in relation to the history of usage of the barn. He is concerned that one member said the usage had been ongoing for twenty years, which he says is untrue and cannot be evidenced.
57. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
58. I appreciate Mr D’s concern but having viewed the meeting I do not agree the Board was misled. In response to the member’s comment an officer said the usage “might” have been going on for twenty years and that a CLEUD application had been withdrawn due to lack of evidence. The members had an opportunity to explore this further if they wished. They also had the history explained in the planning documents. In addition, the Council’s planning approval did not hinge on the history of the barn’s usage, but on whether there were material issues sufficient to reject the application and whether the Board considered B1 use led to greater harm than unfettered agricultural use. I therefore do not find that the member’s comment and officer response caused a material flaw in the decision making. My view is that, even if there had been no dispute as to whether the usage started in 2015, on the balance of probabilities the Board would have approved the application.
59. The case officer's report considered the application against relevant local and national planning policies. It set out the consultees' responses and summarised the objections that had been received. It considered the impact on the amenity of existing properties, flood resilience, safety of access, light pollution and noise impacts. The report then assessed these matters, proposed conditions to protect Mr D’s amenity and concluded the development would not cause any significant harm to Mr D’s amenity with those conditions. There were therefore no planning reasons to justify refusing the application.
60. I am satisfied that the Council had enough information about the application and properly considered the relevant planning issues when reaching its decision. I therefore do not find fault in the way it determined the planning application.

Publication of documents

61. Mr D complains the Council did not publish all relevant documents on its website. It published the documents required by the 2015 Order. It was not required to publish all of Mr D’s letters or the links to his other documents. There was therefore no fault.

Complaint handling

62. Mr D complained before the Council had determined the planning application. The stage one response does not therefore go into detail about the issues he raised as it says these will be considered in the planning process. This was a proportionate approach to take.
63. However, I find the stage two response issued on 23 September 2020 to be cursory and insufficient. Whilst the Council’s policy does not specify that the stage two consideration of a complaint must be a detailed investigation, the response only updates Mr D on when the matter may be considered by the Board. It does not comment on the previous complaint response nor does it explain it was the final step in the complaint process or that Mr D could now go to the Ombudsman. This was fault, but I do not consider it caused Mr D a significant injustice as he came to the Ombudsman anyway.
64. There is no fault in the Council’s decision not to take Mr D’s second complaint further. Although it raises new concerns about what happened at the Planning Board, they are intrinsically linked with the first complaint about the planning application and its consideration which the Council had responded to at stage one and which had come to the Ombudsman. It was entitled to decided not to pursue the complaint in these circumstances.

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Agreed action

65. Within a month of my final decision, the Council has agreed to apologise to Mr D and pay him £350 to acknowledge the injustice caused to him by the delay in determining the planning application.

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Final decision

66. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman