Summary: There was no fault by the Council in a complaint which alleged that it failed to enforce conditions of a planning permission granted to the operator of an ice rink in a park close to the complainant’s home.

The complaint

1. Mrs X says the Council failed to enforce conditions of a planning permission granted to the operator of an ice rink in a park close to her home.
2. Mrs X also complains of fault in the way the Council determined the planning application for operation of the ice rink. She says:
• There was no consultation with a local interest group or residents in the area surrounding the park.
• Chichester BID staff commented that the location of the ice rink was totally inappropriate, but the Council pressed on with the project.
• The planning process was completed in record time and without normal requirements.
• The applicant submitted poor quality paperwork largely copied and pasted from summer events that referred to camp sites and temperatures of 28 degrees.
• There were no reports on carbon emissions or traffic management and no details on the disposal of ice at the end of the event.
• The noise assessment was based on a desk top exercise.
• The planning committee were misled by officers

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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. 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

5. I reviewed the complaint and background information provided by Mrs X and the Council. I discussed matters with Mrs X by telephone. I sent a draft decision statement to Mrs X and the Council and invited the comments of both parties on it.

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What I found

The planning enforcement complaint

Law and government guidance on planning enforcement

6. Government guidance states the following:
• Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations.
• In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework (NPPF), in particular paragraph 58.
• Paragraph 58 of the NPPF says enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

Background

7. Mrs X says the Council failed to take enforcement action on the following breaches of planning control by the operator of the ice rink:
• Planning condition 1 – vacation of the park. Mrs X says planning permission was granted for operation of the ice rink between 24 November 2018 and 6 January 2019. However, the operator did not clear the site until 16 January 2019.
• Planning condition 6 – lighting. Mrs X says on 3 December 2018, the external lights were left on all night by the operator.
• Planning condition 8 – deliveries. Mrs X says fuel was delivered to the site on 22 December 2018 as well as other deliveries to the bar. This was contrary to the timings stated in condition 8.
• Planning condition 9 – noise mitigation. Mrs X says noise from the site exceeded permitted levels but the Council failed to come out at times when they reported noise. Instead the Council placed sound recording equipment in a bedroom so recordings could be taken throughout the night. Environmental health officers orally admitted the permitted levels were exceeded before subsequently claiming the readings were faulty. Officers then accused the owner of the property of tampering with the equipment. The operator of the ice rink removed noise baffling and sound proofing measures on 8 January 2019, but a generator continued to run.
• Planning condition 13 – noise complaint system. Mrs X says they called the telephone number provided by the Council on numerous occasions but they only received an automated response saying the office was closed. Calls to a mobile number also went unanswered. The condition required the telephone line to be manned at all times but her experience of calling the number leads her to conclude it was not.
• Planning condition 14 – deliveries. Mrs X says there were to be no deliveries before 7am but during the set up and deconstruction of the site residents were woken up before 7am by lorries arriving on site.
8. The Council responded to Mrs X’s complaint about vacation of the park by saying this matter was not raised with its planning enforcement officers and so its officers did not investigate it. However, it also said a planning enforcement officer visited the site on 9 January 2019 and noted dismantling of the structures was underway. The Council did not therefore consider daily monitoring of the dismantling process was necessary to enable compliance with the condition.
9. On the complaint about breach of the condition relating to lighting, the Council again said it did not receive a complaint relating to use of external lighting on the night of 3 December 2018.
10. On the complaint about the breach of the condition on deliveries taking place during the park opening hours, the Council said the operator of the ice rink approached officers on one occasion to let them know delivery of equipment would take place outside of permitted hours. It agreed the request as an exception. It did not receive any report of a breach of planning control involving deliveries during the park opening hours.
11. The Council was satisfied there was no breach of planning control relating to condition 9 on noise. The investigation of the breach was dealt with by environmental health officers. I will address this part of the complaint separately under a complaint about noise pollution made by Mrs X.
12. The Council says it received a complaint about the removal of sound proofing from the generator on 8 January 2019. An enforcement officer visited the site on 9 January and noted the site was due to be shut down completely by 5pm on the same day. The officer therefore considered it was not expedient to take any enforcement action.
13. On the operation of the noise complaint system, the Council said a planning enforcement officer rang the phone number to test its operation. It says the officer was able to speak to a member of its ice rink team on several occasions. It could not explain why Mrs X was unable to contact the ice rink team. It was satisfied the operator kept a log of telephone calls received on noise issues and dealt with them appropriately. It did not find a breach of condition 13 had occurred.
14. On deliveries as required by condition 14, the Council said there was a possible overlap with the occasion on which it allowed deliveries during park hours as an exception. However, it did not consider it was expedient to take enforcement action.

Finding

15. I do not find fault by the Council in terms of its consideration of, and decisions on, the planning enforcement matters raised by Mrs X.
16. Enforcement action is discretionary. The Council is legally required to take enforcement action only if it considers it is expedient to do so. It must also consider whether it is proportionate to take enforcement action on a breach of planning control.
17. Given these factors, I cannot conclude the Council failed to take enforcement action as Mrs X alleges.
18. I do have a concern about the wording of condition 13 on the planning complaint system and the Council’s subsequent response to Mrs X’s complaint. Planning condition 13 says

“a noise complaint system shall be put in place and shall consist of an allocated telephone number. The line shall open and be manned at all times throughout the occupation of the site by the applicant”.

19. Mrs X said she and others telephoned the line out of hours and were unable to make contact with anyone. The Council, in responding to this point, says a planning enforcement officer rang the line on several occasions and successfully contacted the ice rink team. But the Council did not explain whether its attempts were made during the evening or out of normal working hours.
20. It is clear Mrs X’s complaint is that the telephone line was not manned at all times. From the Council’s response, I cannot conclude the line was tested at all times such that officers could conclude there was no breach of the planning condition.
21. However, I do not find this failing is serious or significant enough to lead me to conclude there was fault by the Council. I highlight this matter as a learning point for the Council.

The planning application complaint

There was no consultation with a local interest group or residents in the area surrounding the park

22. Mrs X says a group referred to as friends of the park were not consulted by the Council. Government guidance suggests local planning authorities should engage with non-statutory consultees to identify the types of development within a local areas in which they have an interest, so that any formal consultation can be directed appropriately, and unnecessary consultation avoided.
23. I do not know whether the friends of the park had registered an interest in knowing about planning applications involving the park with the Council. Had the group done so then there would have been a duty on the Council to consult the group. However, I do not consider Mrs X suffered a personal injustice because of this matter that warrants further enquiry into this matter by the Ombudsman. The papers show she was personally aware of the application and so I cannot say she was denied the opportunity to comment on it because the friends of the park were not consulted.
24. The aim of publicity for a planning application is to ensure third parties are aware of, and can comment on, planning applications. The Council recorded 7 separate comments under the name of Mrs X’s husband. Its website also shows comments from other residents around the park. I do not therefore share Mrs X’s view there was no consultation with residents.

Chichester BID staff commented that the location of the ice rink was totally inappropriate, but the Council pressed on with the project

25. Mrs X says officers from the Chichester Business Improvement District (BID) said the location of the ice rink was inappropriate. However, this is in contrast to that body’s submission to the Council as a statutory consultee. The submission was positive about the application and did not refer to any problem with the location of the ice rink.
26. I cannot now comment on what transpired during a conversation between Mrs X and the staff of Chichester BID. But given the submission of Chichester BID made to the Council, I do not find the Council failed to consider an objection by that body to the location of the ice rink.

The planning process was completed in record time and without normal requirements

27. Local planning authorities are required to determine minor planning applications within 8 weeks and major applications within 13 weeks.
28. The planning application in this case was submitted on 2 October 2018. It went before the planning committee on 17 October and then 14 November. The decision notice was signed on 16 November. I do not find the decision was made hastily or in record time. Whether the normal requirements were met is a question to be addressed in the following paragraphs.

The applicant submitted poor quality paperwork largely copied and pasted from summer events that referred to camp sites and temperatures of 28 degrees

29. Government guidance on validation is clear that there may be circumstances where supporting information provided by an applicant is inadequate or its quality may be a concern. However, these are not grounds for invalidating applications. The local planning authority can request clarification or further information during the determination process.
30. Government guidance also says a direction to an application to provide further information should be made only when necessary to assist the local planning authority in its determination of an application and must not affect the validity of an application, where it has been validated and registered.
31. Given the law and government guidance I do not find fault because the Council accepted the application for determination.

There were no reports on carbon emissions or traffic management and no details on the disposal of ice at the end of the event

32. The highways authority considered the applicant’s construction management plan as well as a site set up plan. The Council’s parking team did not raise any objections.
33. The issue of carbon emissions was not raised or considered in the officer report to the planning committee. As this was a minor application there was no statutory requirement to provide an environmental impact assessment covering carbon emissions from the ice rink. The ice rink was intended for a small area of the park and would be temporary. So, it is unlikely carbon emissions would be considered significant or contentious as to warrant an environmental impact assessment.
34. The officer report to the committee dealt with the issue of surface water drainage including disposal of water from melting ice.
35. From reading the planning application documents I am satisfied the applicant provided information on environmental and highways matters.
36. It may be that Mrs X refers here to the unavailability of information on these matters on the Council’s website during the consultation period. If so, I concur with her that the Council should have taken steps to ensure the information was available during the public consultation period. But Mrs X and/or her husband made a number of comments at various points during the process as information was made available on the website. I do not consider Mrs X were prevented from making representations to the Council because these reports were unavailable.

The noise assessment was based on a desk top exercise

37. The applicant submitted information from an acoustics expert on the likely impact of the development in terms of noise as well as the measures proposed to mitigate the noise. The Council’s environmental health officers then evaluated the report and made their comments to planning officers. Mrs X says the assessment was a desktop one and so contends it was flawed.
38. That environmental health officers evaluated the noise report from the applicant is the normal approach taken by local planning authorities. The Council is not the applicant and so it was not for the Council to obtain its own information on the noise impact. Its role was to evaluate the information provided by the applicant.

The planning committee were misled by officers

39. Mrs X says the planning committee was misled by officers in relation to their assessment of the planning application as well as the likely noise impact of the development.
40. The planning committee was furnished with all the information on the planning file including objections from third party; the comments of statutory consultees; the noise report submitted by the applicant and officers’ evaluation of it. There was discussion at the committee meeting about the quiet nature of the area and the impact of the development in terms of noise. I do not find officers misled the planning committee.

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Final decision

41. I closed this complaint because I do not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman