Restormel Borough Council (06B11183)

Planning enforcement                Maladministration causing injustice

9 January 2008

The complaint

Ms X complained on behalf of a small group of residents of a rural hamlet about the way the Council dealt with activities at a nearby business that did not have planning permission. She said that the Council had failed to take enforcement action against the business and issued a lawful development certificate (LDC) contrary to its own legal advice. She said that, as a result, the residents suffered unacceptable noise and disruption, and that important wildlife habitats were destroyed.

What happened

The site owner had submitted an application for a LDC in November 2003, but it was not determined until 2006. Despite strong legal advice to the contrary, the Council decided to appoint a members’ subgroup to evaluate the evidence.

The residents, through their professional adviser, sought to submit evidence to challenge that provided by the site owner. The members’ panel eventually recommended approval of the application, contrary to the legal advice it received.

The Ombudsman’s view

The Ombudsman’s investigation found that the members’ panel had met erratically, was not rigorous in evaluating the historic evidence, and was swayed by their views about the current planning merits of the site. He concluded that the Council had not been even-handed in dealing with the information provided and that the delayed and unsound decision-making process had caused injustice to the residents. He said:

“…the process by which the LDC was considered was fundamentally flawed. Had the matter been dealt with correctly, I believe the application should have been refused on the evidence.”

A LDC had been issued when the application should have been refused and the matter considered as a planning application on its merits. The long delay in reaching a decision also meant that investigation of other unapproved activities was slow and half-hearted while the planning status of the land was undetermined. The residents suffered considerable cost and uncertainty over a four-year period, and some permanent loss of amenity that could not now be defined.

The outcome

The Ombudsman found maladministration causing injustice to the residents represented by Ms X. He recommended the Council to:

• pay £10,000 to the worst-affected resident who lived closest to the site;
• pay £2,500 to a couple who were similarly affected but who had now moved away;
• pay £7,500 to another couple who were particularly affected by lorries visiting the site;
• pay £4,000 as a contribution to Ms X’s professional costs; and
• commission external consultants to carry out and complete a reassessment of the present position at the site within six months of the date of the Ombudsman’s report, taking into account all nuisance and enforcement issues, using the LDC limitations as a benchmark. The Council should report its findings both to the Ombudsman and to affected residents, and should then consider any recommendations to protect the amenity of the area further.

Date Updated: 13/01/09