Summary: Mr X complained the Council failed to take action to enforce a planning condition. We have not found fault with the Council.

The complaint

1. The complainant, who I am calling Mr X, complains the Council failed to take action to enforce a planning condition. He says this condition required the operator of a quarry neighbouring his property to monitor dust levels before it started, and throughout, the operation and restoration of the quarry. The Council should have required the operator to continue to provide dust monitoring results after extraction ceased to establish background levels.
2. Mr X is concerned about the effect of dust from the quarry on his property and business. He says this information is needed to support a claim against the operator.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

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How I considered this complaint

6. I spoke to Mr X, made enquiries of the Council and read the information Mr X and the Council provided about the complaint.
7. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

Planning law and guidance

8. Planning permission may be granted by a planning authority subject to conditions relating to the development and use of land. Where necessary for approval of a permission, a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application.
9. A planning authority can take enforcement action if they find planning rules have been breached.
10. 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, planning authorities 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. Government guidance encourages planning authorities to resolve issues through negotiation and dialogue with developers.
11. Although planning enforcement is discretionary, we expect planning authorities to respond to reports of planning breaches, investigate and decide whether or not to take enforcement action without delay.
12. Mineral planning issues are dealt with by county councils, unitary authorities, and National Parks, as the mineral planning authority for issues within their area.

What happened

Background

13. I have set out a summary of the key events below. It is not meant to show everything that happened. We are only considering Mr X’s complaint about the Council’s decision in 2021, but I have set out the background by way of context.
14. The Council, as the mineral planning authority, granted planning permission for the extraction of sand and gravel at a quarry next to Mr X’s property. The planning permission dated 19 April 2012 included the following condition:

“Dust mitigation and monitoring shall be undertaken throughout the duration of the development and restoration in accordance with the scheme and programme submitted under the requirements of condition 30 of the planning permission dated 23 July 2010”.

15. A reason for the condition was to safeguard the amenity of local residents and adjacent properties/landowners.
16. The scheme approved by the Council in accordance with condition 30 set out details of the dust monitoring strategy to assess ambient dust levels during the initial operational phase. The scheme allowed for the removal of the monitoring equipment, at the end of a monitoring period which had included in total two summer seasons. This was subject to the collation and submission of results to the Council and the results continuing to be below the nuisance limited.
17. In July 2018 the Council granted planning permission extending the duration of the extraction work at the quarry. This included the following condition:

“Dust monitoring shall be undertaken throughout the duration of the development and restoration in accordance with the scheme and programme submitted on 23 July 2010…….”

18. A reason for the condition was to safeguard the amenity of local residents and adjacent properties/landowners and land users.
19. In 2018, Mr X complained to the Council about excessive dust levels caused by activities at the quarry. A planning officer investigated the complaint. He responded to Mr X in September 2018 and said:

• The relevant test for planning enforcement was not whether dust emissions were being created but whether the impact on local amenity was such that it was expedient to take enforcement action.
• He had visited the site many times over the summer in response to Mr X’s complaint, and as part of routine site monitoring.
• On one visit he considered the dust impact was excessive. He raised this with the operator.
• His subsequent visits appeared to confirm improved mitigation measures by the operator and dust emissions were more acceptable. He did not consider photographs Mr X provided showed dust levels of such a severity the Council could reasonably use them as a basis for taking enforcement action.
• He sent Mr X the dust monitoring results for 2017/2018. He was reviewing the results for this summer.

20. I have not seen evidence of further complaints to the Council about excessive dust levels after September 2018.

Mr X’s complaint to the Council

21. In January 2021 Mr X contacted the Council with questions about the plans for the restoration of the quarry. He also asked about dust monitoring results.
22. In its responses the Council said the last dust monitoring results the operator provided were for August 2018. As there was no longer any active extraction or processing at the quarry, it did not consider it expedient to enforce the requirement to provide dust monitoring results.
23. Mr X was not satisfied with this response. He brought his complaint to us in June 2021.

Council’s response

24. In its response to us, the Council said:

• The site operator made the decision to cease dust monitoring unilaterally after August 2018. It did not inform or consult the Council about this.
• The Council’s understanding is extraction from the quarry stopped around August 2018 and operations since then have been primarily processing of stockpiled material and restoration of processing and stockpiling areas with long periods of no or minimal activity.
• The purpose of the monitoring equipment was to indicate the need to review the mitigation measures should dust levels as measured by the monitoring equipment consistently exceed the agreed standard.
• Given the nature of the operations since late 2018, it considered it would not have been possible or expedient to take enforcement action in relation to the cessation of dust monitoring, particularly given the dust standard was never exceeded and the monitoring was carried out for 5 years beyond that required by the scheme.

Analysis – was there fault by the Council causing injustice?

25. I have not seen any evidence Mr X complained to the Council about dust levels after September 2018. And in any event, Mr X’s complaint to us is not about a failure by the Council to take enforcement action regarding excessive dust levels. His complaint is about the Council’s decision, in 2021, it was not expedient to require the operator to continue to provide dust monitoring results.
26. The Council has explained why it did not consider it expedient to take any enforcement action to require the operator to continue to provide results. It understood there was no longer any active extraction or processing at the quarry.
27. The Council has also said levels had not exceeded the dust standard in the five years of active monitoring during the operational phases of the quarry. And the operator was no longer required, under the terms of the scheme, to continue monitoring.
28. The Council was not required to take enforcement action. It had discretion to decide whether to do so. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We can only decide whether there was fault in the way it was reached.
29. I am satisfied, based on the evidence I have seen, the Council properly considered the relevant information before deciding, in 2021, it was not expedient to require the operator to continue to provide dust monitoring results. I do not consider there was fault by the Council in the way it made this decision.

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Final decision

30. I have completed my investigation of this complaint. I have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman