Summary: the complainant says the Council failed to properly consider all material planning considerations when granting planning permission for a development near her home. This has caused noise and odour nuisance. The Council says it considered all material planning considerations including objections from the complainant and other residents when deciding to grant the application. The Ombudsman finds the Council acted without fault when deciding to grant the planning permission.

The complaint

1. The complainant I shall refer to as Ms X says when considering a planning application, the Council failed to:
• Properly manage the planning application and test information presented by the applicant;
• Properly consider all relevant material planning considerations including the impact on residents, and the number of complaints received about the past running of the plant;
• Properly advise councillors about the relevance of the costs awarded against the Council on a previous planning appeal leading them to consider irrelevant information when deciding the application.

Ms X believes that but for these faults the Council may have made a different decision and she and her neighbours would not suffer the noise and disruption the growth of the plant causes. Ms X says the reference to costs shows councillors scare mongering and not recognising why the Planning Inspectorate awarded costs against it.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
5. If 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

6. In considering the complaint I have:
• Contacted Ms X and read the information presented with her complaint;
• Put enquiries to the Council and examined its response;
• Researched the relevant law, guidance and policy;
• Shared with Ms X and the Council my draft decision and invited comments on it.

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What I found

Law, guidance and policy

7. The Council’s power to grant planning permission is set out in the Town and Country Planning Act 1990.
8. To develop land or change its material use needs planning permission.
9. Councils may grant planning permission subject to conditions limiting the development and use of land.
10. Councils may grant planning permission subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.
11. Councils must make all planning decisions on planning applications as directed by the development plan, unless material considerations suggest otherwise.
12. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. It is guidance for drafting development plans and is a material consideration in deciding applications.
13. Where the development plan is silent or the relevant policies are out of date, councils must decide planning applications in accordance with a ‘presumption in favour of sustainable development’. That is unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
14. Material considerations concern the use and development of land. They do not include issues such as the applicant’s personal conduct, covenants or fall in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
15. 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.
16. Government statements of planning policy are material considerations.
17. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
18. It is for the decision maker to decide what weight to give any material consideration in deciding a planning application.
19. The applicant must satisfy conditions attached to a planning permission and apply for them to be discharged by the Council.
20. Applicants may apply for the removal or variation of planning conditions attached to a planning permission. The Council can refuse or issue a new a fresh planning decision.
21. The Planning Inspectorate may award costs against a party who has behaved unreasonably and caused another party to incur unnecessary or wasted expense on an appeal.
22. The Environmental Protection Act 1990 gives powers to the Council to regulate noise and other statutory nuisance. To count as ‘statutory nuisance’ the act must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home, or other premises;
• Injure health or be likely to injure health.
23. The Environmental Protection Act 1990 states that smoke, gases/fumes, dust, steam, odour, deposits or noise emitted from premises, including land, can be a statutory nuisance. If someone living in a council’s area complains about a statutory nuisance, the council must ‘take such steps as are reasonably practicable to investigate the complaint’.
24. If satisfied that a statutory nuisance exists, or is likely to occur or recur, the Council must serve an Abatement Notice on the person responsible for the nuisance, or on the owner or occupier. The Council can prosecute someone if they fail to comply with an Abatement Notice.
25. Waste plants need an Environmental Permit from the Environment Agency.
26. The Environmental Permitting Regulations control sites subject to Environment Agency permits. The guidance sets out the Council’s duties under the Environmental Protection Act. However, it states where the same event might be prosecuted by the Environment Agency and a council, the council must obtain the Secretary of State’s consent before they prosecute. The guidance aims to prevent prosecution by two authorities for the same event.
27. The guidance confirms councils only need consent from the Secretary of State before prosecuting. Councils do not need consent to serve an Abatement Notice.

What happened

Site history

28. In 2008 the Secretary of State granted planning permission to build an ‘Energy from Waste’ plant. The planning permission contained 67 planning conditions.
29. The planning permission contains a condition limiting waste the company could import by road to 85,000 tonnes a year.
30. In June 2013 the Council refused an application to increase the tonnage to 480,000 tonnes. The applicant appealed. The Planning Inspectorate allowed the appeal in March 2014. The Planning Inspectorate imposed condition 1 of the appeal decision which limited waste imported by road to 480,000. The Planning Inspectorate’s decision noted some conditions attached to the original planning permission may need amendment or clarification.
31. The Planning Inspectorate awarded appeal costs to the appellant in this appeal. The Inspectorate said the Council’s refusal of the planning application led to the appeal. The Inspectorate said had the Council approved the application as recommended by its officers the appeal would not have been necessary. The absence of any evidence to support the single reason the Council gave for refusal meant, in the Inspectorate’s view, the Council had behaved unreasonably putting the applicant to unnecessary and wasted expense. The Inspectorate awarded the applicant’s full costs. Ms X says the Council simply did not defend its decision against the appeal.
32. The Environment Agency granted the Energy from Waste plant an Environmental Permit. The Environment Agency may place conditions on the Energy from Waste plant. It is for the Environment Agency to ensure the plant complies with the Environmental Permit.

Application to replace tonnage limit with vehicle movement limit

33. In August 2018 the Council received an application to vary condition 1 of the appeal decision. The applicant wished to remove the tonnage limit and amend condition 1 to allow no more than 1930 vehicle movements (965 in and 965 out) in any calendar week. The condition would also limit movements to 386 (193 in and 193 out) in any single day.
34. The applicant said this new limit would allow increased waste fuel while keeping the same number of vehicle movements the applicant used when applying for the increase to 480,000 tonnes. Therefore, the applicant argued the tonnage would increase but not the number of lorries bringing waste to the Energy from Waste plant and this should mean no increase in traffic, noise or pollution.
35. The Council publicised the application by sending letters to residents in the area and publishing notices in the local press. The publicity led to objections from the public including from Ms X.
36. The Council considered the application, the planning policies and objections from the public and the case officer wrote a 55- page report for the Development Control Committee.
37. Ms X and other residents objected to the proposed increase in vehicle movements. In support they cited the impact on their amenity, noise, dust and odour nuisance, and complaints they had made over the last four years since the Energy from Waste plant came into service. The Parliamentary and Health Services Ombudsman (PHSO) received a complaint about the Environment Agency. This centred on the Agency’s decisions on the Environmental Permit. Residents believed the Council should defer the planning decision until the PHSO had decided the complaint.

Case officer’s report to committee

38. The case officer’s report outlines the planning history of the site, the original application, planning and appeal decisions. It sets out the policies applicable to the application. In the report the case officer summarises and considers the objections received. The report tells councillors the Council is responsible for assessing air quality and enforcing statutory nuisance. It confirms the Energy from Waste plant is subject to an Environmental Permit enforced by the Environment Agency. The case officer explains that planning guidance directs councils to consider only material planning considerations. This meant the Council should not defer its decision until after the PHSO decided the complaint. This suggests any ruling by the PHSO is not a material planning consideration. Therefore, the Council should not consider it when deciding the application.
39. The case officer considers in the report the Council’s own planning policy on urban development. This recommends avoiding development which results in noise disturbance, noxious fumes, dust and/or traffic generation.
40. The Council has received complaints about the Energy from Waste plant since it opened. Such complaints touch on the impact of the Energy from Waste plant on the amenity of residents. The case officer records the environmental health officer’s observations on noise nuisance and the noise report.
41. In response to objections, the case officer says the site is not subject to any maximum capacity. Therefore, in his view it does not need permission to increase capacity. The case officer goes on to refer to the documentation supporting the application and gives a professional view in response to the objections.
42. The case officer explains the application made under Section 73 of the 1990 Act asks the Council to grant permission to allow development without complying with a condition on a permission. The effect of granting a permission under S73 the case officer says is to grant a freestanding planning permission. This gives the Council an opportunity to clarify the original planning permission by removing or amending planning conditions it believes are no longer relevant.
43. The case officer says some of the original conditions no longer meet the test for planning conditions, i.e. they had to still be relevant and enforceable. Therefore, the case officer recommended deleting over 40 of the original 67 conditions and amending others. The case officer recommended granting planning permission for the change from a tonnage limit to a vehicle movement limit. The case officer also recommended adding 9 conditions to any planning permission.
44. Ms X objected to the planning application. Ms X says the Council’s case officer and councillors at the committee failed to consider the impact the Energy for Waste plant already had on residents. Ms X believes the regular number of complaints made to the Council about the Energy for Waste plant shows an adverse impact on residents.

Committee decision

45. The application went before the Council’s Development Control Committee on 4 February 2019. Councillors had access to the application, supporting documents and the objections received from residents.
46. The case officer told councillors that since publication of the agenda for their meeting the Council had received a further twelve representations. The Council had sent these representations and the officer’s comments by email to councillors before the meeting.
47. The Council allows residents to speak at the Committee. Ms X attended the meeting but did not speak. A resident addressed councillors setting out objections to the proposal. The minutes say the resident raised concerns about the accuracy of the transport assessment and air quality monitoring. The resident also questioned whether the application complied with the National Planning Policy Framework. The minutes record that the resident referred to the persistent complaints made by residents about the odour and steam emitted by the Energy from Waste plant. A local councillor also addressed the Committee for residents. The councillor outlined the many reasons residents objected and tabled several diaries kept by them recording alleged nuisance experienced over several years. The councillor warned the Committee the area could become a ’dumping ground’. He cited concerns about the impact of removing conditions imposed by the Secretary of State to protect residents. The councillor proposed the Committee defer its decision until after the PHSO decided the complaint. The applicant then spoke in support of the application.
48. Councillors asked questions of the case officer and legal officer. These included questions about the tonnage, traffic assessment, air quality and fuel. The Committee considered questions on the likelihood of paying costs should there be a successful appeal against refusal of this application. Ms X says councillors seemed more concerned about the likelihood of paying costs than the material planning considerations. Ms X says they failed to properly understand why costs had been previously awarded against the Council.
49. The officers told the Committee they had no technical reasons to refuse the application. This might mean if they did refuse councillors may risk a further award of costs. Following consideration of these points the Committee granted planning permission subject to several conditions. These included limiting vehicle movements to 386 a day. The other conditions seek to control noise, handling residual waste and restoring the site at the end of the Energy for Waste plants life.
50. Since the grant of planning permission residents continue to complain about the odour nuisance experienced in and around their homes. They say it reaches high scores on the intensity scale used by the Environment Agency. Ms X believes this supports her objections to the planning application.

Analysis – was there fault leading to injustice?

51. My role is to consider if the Council decided the planning application without fault, not to decide the merits of the planning decision. It is not my role to challenge or test the merits of the evidence used by the planning application or objectors. Where there is fault, I must consider if that resulted in a significantly different decision. If so, I must consider whether I should recommend a remedy.
52. The Council gave due publicity to the application including sending information to residents likely to be affected by it. Ms X and other residents therefore had the opportunity to raise objections to the proposal. Therefore, I find the Council acted without fault in publicising the application.
53. The Council gave councillors all relevant information on which to decide whether to grant permission. Councillors had the application, objections, supporting documents and the case officer’s professional view on the application. This includes professional opinions on the benefit of removing some of the original planning conditions. Councillors had the updates before the meeting. They received at the meeting further representations from residents. The Committee heard a resident speak at its meeting setting out residents’ objections. They had before them concerns about the evidence used to support the application, the traffic surveys and odour readings. Councillors had information they could use to ask questions, challenge the officer’s recommendation or ask for further information.
54. Planning conditions attached to the original planning permission aimed at protecting residential amenity remain important to residents. The Council decided to review some planning conditions and test them against the test all conditions should pass that they be necessary, relevant to planning objectives; relevant to the development and enforceable. Officers put forward their professional view on which planning conditions the Council should now remove. Councillors had the opportunity to disagree or approve when granting the planning permission.
55. Therefore, I find the Council acted without fault in ensuring the councillors had all relevant information before them including objections challenging the evidence used to support the application when they decided the application.
56. Councils may only consider material planning considerations when deciding an application. The likelihood of incurring costs should there be a successful appeal is not relevant to that decision. Councillors should however consider any recent appeal history as suggesting what the Planning Inspectorate considers allowable on the site in planning terms. The Planning Inspectorate’s previous decisions are a material consideration. If councillors believe those decisions show strong support for the present application, they may consider that as part of their deliberation. The Planning Inspectorate may award costs against a council where it refuses an application similar to development approved in an earlier appeal decision. The previous decision to award costs arose because the Planning Inspectorate said the Council had not provided reasons to support the refusal. Councillors may ask for confirmation from officers that they have reasons on which to refuse an application that would stand up at appeal. If not, councillors may want to defer a decision to gather information, consider the matter further or decide the application having received advice.
57. Councillors and council officers must be clear the likelihood of incurring costs on appeal should not be a deciding issue in their decisions. Officers must answer questions about that issue if asked but should remind councillors that it is not a material planning consideration. Ms X says the time spent discussing costs at the committee led her to believe some councillors decided the application on fears of incurring costs should they refuse. Ms X therefore believes they considered an irrelevant issue casting doubt on the final decision.
58. The Planning Inspectorate allowed an appeal. The Committee must consider what the Planning Inspectorate said in that appeal. The Planning Inspectorate also considered the Council did not provide evidence for its reason to refuse the application. Therefore, it awarded costs against the Council. We cannot know what is in a councillor’s mind when they decide an application. However, some councillors may want to be sure they did not make the same error again that led to the award of costs. They asked officers to clarify if they had enough reasons to refuse because of the appeal decision.
59. A recent successful planning appeal reflected the Planning Inspectorate’s view on what it may allow on this site.
60. Officers recommended approval with conditions and the Committee decided to grant planning permission. Councillors had before them all relevant information including objections which highlighted the impact on residents’ amenity as shown by the number of complaints made. On balance I find the Council decided the application without fault.

Final decision

61. In completing my investigation, I find the Council acted without fault in considering the application therefore I cannot challenge the merits of the Council’s decision.

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Investigator's decision on behalf of the Ombudsman