The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision that no breach of planning control is taking place at a children’s home in the village where the complainant lives. There is not enough evidence of fault in the Council’s actions.
The complaint
The complainant, I shall call Mr D, complains the Council has allowed a children's homes to open near to where he lives without planning permission. The Council accepts there is a change of planning class from residential home to residential institution. However, it insists there is no material change of use despite an increase in the number of cars.
He says staff from the home park on the road causing congestion. And the children congregate outside unsupervised, intimidating local children with bad language and behaviour.
Mr D wants the Council to insist on planning applications for change of use.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure,’ which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice.’ We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Mr D and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The relevant planning classes to this complaint are: “Class C2 - Residential care homes, hospitals, nursing homes, boarding schools, residential colleges, and training centres; and” “Class C3 - Dwellinghouses - This class is formed of three parts:” “C3(a) covers use by a single person or a family (a couple whether married or not, a person related to one another with members of the family of one of the couple to be treated as members of the family of the other), an employer and certain domestic employees (such as an au pair, nanny, nurse, governess, servant, chauffeur, gardener, secretary and personal assistant), 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” “C3(c) allows for groups of people (up to six) living together as a single household. This allows for those groupings that do not fall within the C4 HMO definition, but which fell within the previous C3 use class, to be provided for i.e., a small religious community may fall into this section as could a homeowner who is living with a lodger” Depending on the specifics of any proposed change of use, including any building work associated with the proposal, it may require an application for planning permission or prior approval.
Following complaints from residents, the Council sought legal advice on whether children’s homes fall into a different class to residential homes. It accepts that a residential home for children falls into class C2.
Public Authority guidance says: “A material change of use from class C3 to C2 amounts to development requiring planning permission. There is therefore a potential requirement for planning permission to use a dwelling house as a children’s home. The starting point is to first establish as a matter of fact and degree, whether such a use would constitute a change of use from C3 to C2. The issue largely centres on whether or not the children are in themselves capable of living together as a single household.”
The Council has visited the most recent home to be established. It sought information from the company which owns the property. It confirms there are three children living in the property, each with a bedroom. Two members of staff have a bedroom each working on a twelve-hour rota. There is sufficient off-road parking for the staff. The house has not been extended or altered in any way.
The Council has decided the number of children and staff living at the property is not so different to a ‘normal’ residential home to justify a material change of use. Therefore, it does not consider a breach of planning control has occurred and will not take enforcement action.
Planning enforcement is discretionary, and it is for the planning authority to decide what action, if any, it is expedient to take. Government guidance encourages planning authorities to act proportionately in response to breaches of planning control, and to resolve issues through negotiation and dialogue with developers in the first instance.
In this case, the Council looked into the report of a breach of planning control. It accepts residential institutions occupy a different planning class to private residential (family) homes. However, it has decided three children and two staff (although on shifts) occupying the house is not so different from a residential property to be considered as a material change of use. This is a decision the Council was entitled to reach, even if Mr D holds a different view.
Final decision
We will not investigate Mr D’s complaint because there is not enough evidence of fault in the Council’s actions leading to its decision that there is no breach of planning control.
Investigator's decision on behalf of the Ombudsman