Summary: Mr B complains the Council failed to ensure the operator of a quarry was required to enter into an agreement with him to ensure that monitoring of his private water supply could take place. The Council had insufficient information to reach a sound decision but this did not cause any significant injustice to Mr B.

The complaint

1. The Environment Agency recommended the borehole on Mr B’s property should be monitored if the Council granted planning permission for an extension to a quarry on neighbouring land. Mr B complains the Council failed to ensure the operator was required to enter into an agreement with him to ensure that monitoring could take place.

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The Ombudsman’s role and powers

2. 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)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), 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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments

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What I found

What happened

6. Mr B lives near a quarry and has a borehole on his property which provides his water supply. The operators of the quarry applied to the Council for planning permission for an extension to the quarry. As part of the consideration of the planning application the Council consulted with the Environment Agency. They recommended there should be a water monitoring plan (WMP) to monitor water levels at local private boreholes subject to 'reasonable terms'.
7. The Council entered into a planning agreement with the operator for the WMP, among other things. This stated that access to Mr B’s borehole was to be by monthly dipping to determine the water level and a data capture device inserted into the borehole to monitor levels at 20 minute intervals.
8. The operator of the quarry has said their normal procedure is to contact the property/borehole owners to arrange/give notice of the monitoring round. When the operator contacted Mr B he refused access as terms had not been agreed.
9. Mr B asked the Council to compel the operator to enter into negotiations with him to agree terms for the monitoring to take place. The Council’s position was there was no breach of the terms of the planning agreement because the operator had given Mr B reasonable notice of its intention to carry out the monitoring.

Planning agreements

10. Planning obligations, also known as Section 106 agreements (based on that section of the 1990 Town & Country Planning Act) are private agreements made between local authorities and operators and can be attached to a planning permission to make acceptable development which would otherwise be unacceptable in planning terms. The land itself, rather than the person or organisation that develops the land, is bound by a S106 agreement. They, are legally binding and enforceable. S106 agreements should only be used where it is not possible to address unacceptable impacts through a planning condition.

Analysis

11. It was not wrong to include the requirement for the operator to monitor on Mr B’s land. But the question raised by the complaint is what should happen if Mr B did not agree.
12. It is Mr B’s land so he was entitled to refuse access to it. I note the comments made that it would be in his interests to allow access as it would be to monitor his water supply but that does not alter the position that it is his decision to make.
13. In considering this point the Council concluded there was no breach of planning control as the operator had tried to monitor and given Mr B notice. It considers Mr B is being unreasonable in refusing access. It considers the operator has proposed reasonable terms for the monitoring so there is no breach of the S106 agreement.
14. I agree with the Council that the key point here is the operator must show that they proposed reasonable terms for the monitoring as that is what the WMP requires. The information supplied by the Council shows Mr B had previously been content with regular monitoring of the borehole on his land but withdrew his consent. But I have seen no information about what the operator had proposed to Mr B about the permanent placing of equipment on his land. In responding to my enquiries on this point the Council has provided information about the data capture device but this was not provided to Mr B or the Council at the time. Nor was there any written information from the operator to show what it was proposing.
15. In responding to a draft of this decision the Council said that a key point was that Mr B wanted to charge the operator a fee. On that basis it considered his position was unreasonable and it could not, therefore, contemplate enforcement action against the operator. I understand the Council’s point but the issue it needed to address itself to first was not whether it considered Mr B to be unreasonable but whether the operator had offered reasonable terms. As I say above the key point here is that the proposal was for the permanent stationing of equipment on Mr B’s land. The Council has provided no evidence to show it had any detail at the time about what that was and any other details of the terms proposed by the operator. The absence of that information means it could not reach a sound decision on whether reasonable terms had been offered. And that was the question it needed to consider. Once it had satisfied itself on that then it could go on to consider Mr B’s position.
16. Where there has been fault I have to consider what the consequence has been. Had the Council had more information from the operator on this point it may still have considered what was proposed was reasonable and there was, therefore, no breach of planning control. Or, it may have decided the operator had not offered reasonable terms and therefore there was a breach. In that case it would have to go on to consider what action, if any, was appropriate.
17. Where there is a breach the Council must consider what action it should take. Councils can take enforcement action if they find planning rules have been breached. However, they should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

18. Here the Council has provided sound arguments why enforcement action would not be warranted. In reaching that decision it has considered the other action the operator has taken which the Environment Agency is satisfied with. There was no fault in how it reached that decision. Therefore the fault I have found has not caused any significant injustice to Mr B.

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Final decision

19. The Council had insufficient information to reach a sound decision but this did not cause any significant injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman