Cheshire East Council (18 019 849)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 28 Aug 2019

The Ombudsman's final decision:

Summary: Mr X complained the Council has failed to protect him from noise, dust and odour from an industrial site. The Council investigated the complaints but did not find evidence that would justify formal enforcement action. We completed our investigation as there was no fault in the way the Council made its decisions.

The complaint

  1. Mr X complains the Council has failed to take enforcement action against the operators of an industrial site, whose manufacturing process generates dust. Mr X believes the Council should not, in 2015, have approved planning permission for industrial use outside existing buildings.
  2. Mr X says this affects his health and that of other residents in the area.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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)
  3. 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)

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How I considered this complaint

  1. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and discussed it with a Council Officer.
  2. I have given the Council and Mr X an opportunity to comment on my draft decision and will take account of any comments I receive.

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What I found

  1. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • Access to the highway;
    • Protection of ecological and heritage assets; and
    • The impact on neighbouring amenity.
  3. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
  4. In addition to their planning powers, councils can take enforcement action using their powers under environmental protection legislation and regulation.
  5. Regulations allow councils to require an environmental permit to control any industrial process that might release pollution to land, air or water. Councils inspect sites to determine how best to control pollution and permits include conditions to this effect.
  6. In addition to permitting powers, environmental protection officers (EPOs) have powers under other legislation to stop a nuisance caused by pollution, such as vibration, noise, dust, noxious smells and odours. The Council may serve an abatement notice which will state what the nuisance is and what should be done to stop or resolve it. If the nuisance continues, the Council may take action against the perpetrator in the magistrate’s court.
  7. Construction and industrial processes may be subject to controls, restricting working hours. Typically, hours are restricted to the working day and are more restricted at the weekend, often with a complete ban on Sundays and Bank Holidays.

What happened

  1. Mr X lives in the countryside. Across open fields, some distance from his village, is a farm, part of which has been used for an industrial manufacturing purpose for over a decade.
  2. Mr X and others have complained to the Council about noise, fumes and dust coming from the site. He complained to the Council and his complaints have been investigated by an EPO.
  3. The Council responded, saying it did not doubt Mr X’s concerns were genuine, but it had not yet found enough evidence to substantiate formal action.
  4. The EPO told me it is possible that a nuisance could be caused from use of the site, but he has not yet found evidence that would, in his opinion, lead to a successful action in the magistrate’s court.
  5. The EPO said he has visited the site many times, often unannounced. He said the site operator uses water suppression to stop dust from the industrial process. However, he has noticed that the site access road, which is shared with other landowners and occupiers, is made from crushed limestone, which could be the source of the dust, or at least some of it. The EPO says he has visited Mr X’s home and looked towards the industrial site but has not observed dust.
  6. The EPO said there were complaints about noise, which he found were caused by cleaning machinery. He did not consider formal action was justified as this had happened during the working day and only occasionally.
  7. Mr X says in 2015 the Council was wrong to approve an application for noisy work to be carried out in the open. Mr X says this planning permission, which was refused and decided by the Planning Inspectorate at an appeal, included conditions restricting working times to certain hours during the day. Mr X says that since then, the operator has on occasions worked in breach of this condition and the Council has failed to act.
  8. The EPO said that he and his colleagues work with the Council’s planning service on this site, though as the complaints are about noise, dust and odour pollution, the environmental protection service has taken the lead in investigations.
  9. The EPO explained the complaints he was asked to investigate were about environmental issues, relating to noise and dust. He said he was aware of the planning controls on the site, but he could not recall any breaches of planning controls during that period, nor find could he find details of such allegations on the Council’s database from April 2018 onwards.
  10. The EPO said he will continue to monitor the site and respond to complaints, but so far it has found no basis to justify formal action.
  11. In its response to Mr X, the Council reminded him that environmental protection legislation allowed him to take his own action to abate a nuisance, if he felt he had sufficient evidence to succeed.
  12. Mr X wanted to make it clear that, while he was disappointed with the Council’s performance, he had no complaints about the work of the EPO. He says that, the EPO, who has been involved for the last year or so, has been very helpful and responded well to complaints and concerns.

My findings

The 2015 planning application

  1. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred or the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
  2. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
    • we are confident that there is a realistic prospect of reaching a sound,fair, and meaningful decision, and
    • we are satisfied that the complainant could not reasonably be expected to have complained sooner.
  3. Mr X has referred to planning decisions made in 2015, but I see no good reason to include these within the scope of this investigation. If Mr X had concerns about the 2015 planning decision, he could have brought them to our attention sooner. In any event, the 2015 application was refused and ultimately decided by the Planning Inspectorate, which is a body outside our remit.
  4. For these reasons, the focus of my investigation has been on more recent events, within 12 months from the time Mr X brought his complaint to our attention i.e. from April 2018 onwards.

The Council’s more recent actions

  1. I asked the Council’s EPO to explain his involvement since April 2018. The EPO has explained that he has visited the site but found no evidence that satisfied him that formal enforcement action was necessary.
  2. We are not an appeal body. Our role is to review the process by which decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
  3. The process we would expect in the enforcement process is as follows.
  4. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
  5. The Council is aware of Mr X’s concerns. Its EPO has visited the site and made judgements about what he has seen, before making a decision that there is not enough evidence to justify formal action.
  6. The Council has followed the process we expect and is entitled to reach the conclusion it has. In these circumstances, I find no fault.

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Final decision

  1. I completed my investigation, as there was no fault in the way the Council made its decisions.

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Investigator's decision on behalf of the Ombudsman

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