Summary: The investigation of this complaint that the Council included an unenforceable condition on a planning permission has been discontinued. This is because there is not enough evidence of fault, and any injustice to the complainant is not significant enough, to justify our continued involvement. This is because Committee Members had decided that a condition requiring traffic routing was needed.

The complaint

1. The complainant, whom I refer to as Mrs X, says the Council included an unenforceable condition concerning the routing of lorries when it granted planning permission for the expansion of a livestock farm. Mrs X says the Council has mislead residents, who would have challenged the application more if they had known the condition was unenforceable.

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The Ombudsman’s role and powers

2. 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, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I read the papers sent by Mrs X and discussed the complaint with her.
4. Mrs X 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

5. The applicant (whose farm is opposite Mrs X’s house) put in a traffic routing plan to support a planning application. This stated vehicles would access the site via the nearby A and B roads, rather than using other more rural roads.
6. The report to the Planning Committee notes residents’ concerns about the direction of vehicle movements, but concludes a vehicle routing strategy is not necessary. Therefore, the planning permission did not include a specific condition requiring traffic to be routed in a particular direction.
7. However, a standard condition on the permission says the development must be carried out in strict accordance with the application form and approved documents/drawings listed in a table at the end of the decision notice. The table included the applicant’s traffic routing plan.
8. In my view, there is not enough evidence of fault by the Council to justify the Ombudsman continuing an investigation. The Council considered the relevant material planning issues when deciding the application, including vehicle movements, and the Committee report clearly says a vehicle routing strategy is unnecessary. It seems the Council’s only error here is that it included the routing plan in the list of approved documents when a routing strategy had been deemed unnecessary. The Council says it understands the confusion the condition/table of documents has caused and is reviewing the wording of the condition and the way the associated table is populated.
9. In addition, the Council has raised the matter with the applicant and is satisfied he monitors the movements of his vehicles through a tracking system, that there is signage encouraging vehicles to use the preferred route, and the tracked vehicles use the accepted route. It says it would be difficult to show there is any breach of a condition even if it imposed one.
10. Finally, although I appreciate Mrs X’s expectations might have been raised by the condition, I am not persuaded the extent of this injustice is so significant to warrant the Ombudsman pursuing the complaint further. This is because there was clearly no intention by Committee Members to place a condition restricting traffic routing on the application. So, Members did not intend there to be any control of the traffic routing as they did not consider it (or a new access across fields) necessary.

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Final decision

11. I have not investigated Mrs X’s complaint further because there is not enough evidence of fault by the Council, and any injustice to her is not significant enough, to warrant further investigation.

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Investigator's decision on behalf of the Ombudsman