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North Devon District Council (20 008 375)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 12 Aug 2021

The Ombudsman's final decision:

Summary: There was fault in the Council’s communication with Mrs X in response to her complaints about planning enforcement. This did not affect the outcome of the planning enforcement matters but has made the situation more difficult for her. There was no fault in the Council’s consideration of objections to a planning application on highway grounds.

The complaint

  1. The complainant, who I shall call Mrs X, complains the Council’s investigation of breach of planning conditions on two planning applications was delayed and inadequate. She also complains the Council did not consider the impact of two recent planning applications on the highway.
  2. Mrs X says her request to have the planning applications ‘called in’ for a decision by the planning Committee was not responded to by her local Councillor, after the Chair of the planning Committee visited and advised her it should be called in. Mrs X says that she wants the Council to improve its poor communication and wants improved consultation on future planning applications.
  3. Mrs X also complains the Council did not tell her by letter of two planning applications and there were address errors on the applications in 2015 and 2007.

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What I have investigated

  1. I have investigated Mrs X’s complaints about the two recent planning applications. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. 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)
  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. 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

  1. I read the papers put in by Mrs X and discussed the complaint with her.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Mrs X lives in a house, on a single track country lane. She complains about planning applications and the use of the agricultural land opposite her.

Feed silo planning condition in 2007

  1. The Council granted retrospective permission for a feed silo in 2007. A condition of that permission said the silo should be removed by December 2010.
  2. Section 171b of the Town & Country Planning Act 1990 says that in most cases, development becomes immune from enforcement if no action is taken:
    • within 4 years of substantial completion for a breach of planning control consisting of operational development;
    • within 10 years for any other breach of planning control (including breach of conditions).’
  3. Mrs X complained the silo was still there in 2020. The Council said that it could not take enforcement action as the time limit for taking enforcement action was in 2014, as it considered it was operational development. Officers considered whether it fell under the 10 year time limit but decided this was not the case.
  4. I find no fault in the Council’s decision that it could not take enforcement action. However, there was fault in the Council’s communication with Mrs X. The correspondence was confused and contradictory and the enforcement officer did not respond to my enquiry questions.

Planning conditions for 2015 planning application

  1. In 2015 the Council granted planning permission for a livestock building and feed silo. This was subject to two conditions:
    • Condition 4 that any foul drainage, including foul surface water run off, must be disposed of to prevent discharge to any watercourse or dry ditches with a connection to a watercourse.
    • Condition 5 that slurry must be stored within a sealed system, which should be isolated from the main drainage system.
  2. Mrs X also complained the Environment Agency (EA) about run off and a manure heap. The EA emailed Mrs X in October 2019 to confirm the manure heap would be removed within a couple of days and the dark brown water would be unlikely to be having any impact on the receiving watercourse in the current conditions.
  3. In July 2019 the Environment Agency said to Mrs X ‘Following your report at the end of last year the discharge of dirty water through the bank was stopped and the farmer has taken action to prevent any further discharge at this location. We have checked the manure heap and there is no evidence of any runoff but the Agency will continue to monitor this farm’.
  4. I find no fault in the Council’s decision that it could not take enforcement action as the Environment Agency had already taken action. However, there was fault in the Council’s communication with Mrs X. The correspondence was confused and contradictory and the enforcement officer did not respond to my enquiry questions.

Council’s communication

  1. I have found fault in the Council’s communication with Mrs X in regard to planning enforcement complaints she had made. I now have to consider what injustice this has caused to Mrs X. I do not consider the outcome of her planning enforcement complaints would have been different if the Council’s communication had been better. However, I can understand that it has made the situation more difficult as she has not had a definitive statement on the status of the site opposite. So, to remedy the injustice I recommend that the Council apologies for its poor communication and writes to her with an explanation of the current status of the site.

Highway concerns about recent planning applications.

  1. In 2019 the farmer put in two planning applications. These were for two poultry units & two feed bins, together with four concrete pads to enable moving the units.
  2. The planning officers report noted there was one access to the site through a single gateway. The gate leads to a single track rural lane for 700 metres where it joins a main road.
  3. The planning officer consulted the County Council’s highways officer. Their comments were ‘ I have carefully considered these application and the likely traffic generation and character of vehicle that is likely to result. The typical nature of the county roads serving the site, including limits on passing places, I am of the opinion the traffic generation is not of a level that is materially significant and is therefore not considered ‘severe’. On this basis I can confirm there are no highway objections to raise.
  4. The parish Council objected on Highways grounds due to the inadequate width, condition and visibility along the road. Mrs X’s objection due to the increased traffic from larger vehicles was in the planning officers report. Mrs X’s objection said the inadequate nature of the road due to width, lack of visibility at the corner and lack of pass places and general poor condition of the road, including mud and debris.
  5. The planning officer noted in the report there had been many objections on highway grounds. The report said there would be 2 lorries delivering feed per month, 1 lorry collecting birds every 5 weeks and 2 tractors delivering chicks and removing manure every 5 weeks. The applicant would also visit daily.
  6. The planning report said the site had historically used for 28 poultry houses until 2 years ago and there would be large vehicle, tractor and trailer movements at the site. The planning officer advised they had no objections and his view was the surrounding road network was adequate to accommodate the traffic from the development.
  7. The Council granted planning permission in July 2020. I have looked at the information and I can find no evidence of fault in the planning officers consideration of highway issues. The officer got advice from expert highway officers and made a recommendation following that advice.
  8. Mrs X says the planning permission for her house says no more development should take place because of the insufficient road layout. She thinks that because of this, the Council should have refused planning permission. While I note her view, I could not say that a condition on a residential planning permission could be applied to an agricultural use as an agricultural field would already have heavy farm traffic using it.

Councillor visit

  1. Mrs X says her request to have the planning applications ‘called in’ for a planning Committee decision was not responded to by her local Councillor, after the Chair of the planning Committee visited and advised her it should be called in.
  2. The local Councillor has replied to my enquiry on why they did not call in the application. They have said that ‘they are not sure they remember Mrs X asking him to call in the applications but he could find no valid planning reasons to not support the application or to call it in with the planning conditions’.
  3. The Chair of the planning Committee said in response to my enquiry that ‘they remember calling at Mrs X’s house at her request in possibly 2019. They cannot recall what was said 2 years later but bearing in mind that a call in request would normally come from her local Councillor, them suggesting she ask him to do so, would seem likely’. The Chair said ‘he would have been unlikely to have used, the word definitely, because when a decision is out of your hands, nothing is guaranteed or definite’.
  4. I can find no evidence of fault on this part of the complaint. Clearly the chair visited Mrs X as she recalls. However, there is no evidence to support her view the Chair said the planning application should definitely be called in. The statement from the ward Councillor suggests that they did not consider there were reasons to call in the application.

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Agreed action

  1. The Council apologises for its poor communication to Mrs X within two months of the date of this decision.
  2. The Council writes to Mrs X with an update of the current planning status of the site within two months of the date of this decision and keeps her informed every 3 months of matters relating to the enforcement of planning conditions on the site.

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Final decision

  1. I have completed my investigation of this complaint. This complaint is upheld. I consider the actions recommended above remedy the injustice caused by the fault I have identified.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs X's complaint about the planning applications in 2007 and 2015. Mrs G has not complained about this issue until now to either the Council or the Ombudsman. I have decided not to exercise discretion to investigate these complaints, as I consider the matters complained about occurred too long ago for there to be a reasonable prospect of finding out why or if any fault occurred.

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Investigator's decision on behalf of the Ombudsman

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