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Herefordshire Council (21 004 539)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 13 Dec 2021

The Ombudsman's final decision:

Summary: There is insufficient evidence of fault by the Council that has caused significant injustice to warrant investigation of this complaint. The breach of planning condition complained about is now resolved and the injustice caused from increased traffic movements on several days over 2 years is not sufficient to warrant a remedy.

The complaint

  1. The complainant, who I shall call Mr X, complains the Council delayed taking enforcement action. Mr X says the Council is now taking action and the plant is being decommissioned, but residents in the village have been subject to heavy traffic on certain days over the last two years.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • any injustice is not significant enough to justify our involvement, or
  • further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

  1. I read the papers submitted by Mr X and discussed the complaint with him.
  2. I considered the information available on the Council’s planning website.
  3. Mr 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

Key facts

  1. In 2013 a farm gained permission to build an anaerobic digester to produce electricity. Traffic from the digester passes through the village Mr X lives in, which is about 2.5 km away.
  2. The Council received complaints from residents about increased traffic to and from the plant in July 2019. The movements to the digester are seasonal, mainly during silage harvesting up to three times a year. Residents made further complains about increased movements during two days in May 2020. These movements were in breach of the planning condition as they related to silage from outside the farm.
  3. In June 2020 the Council responded to Mr X’s complaint. The Council said that officers had considered the information from residents about traffic movements and spoken to the site owner. The Council said the owner intended to put in a planning application to address the issue.
  4. In June 2020 the applicant put in an application to vary a condition on the planning permission, relating to the transport plan and vehicle movements. The Council refused this application in February 2021, due to the significant increase in vehicle movements impacting highway safety and disturbing residents.
  5. In July 2021 the Council issued a breach of condition notice. The Council said officers visited the site in October 2021 and confirmed the site was being in the process of being decommissioned.

My analysis

  1. Mr X explained that he had recently heard from the Council that the subject of his complaint, the breach of planning condition was coming to a satisfactory conclusion. However, he wished the Ombudsman to investigate whether there had been delay by the Council in taking enforcement action.
  2. I have looked at all the information. My view is there is not enough evidence of fault and injustice for the Ombudsman to investigate further.
  3. Mr X made the first complaint to the Council in July 2019. The Council invited the owner to put in a planning application to regularise the breach, which happened in June 2020. After the Council refused the planning application, the Council started enforcement action within 6 months and the plant was decommissioned 3 months later.
  4. I can see no evidence of significant delay. The breach of the planning condition related to traffic movements from outside the farm on specific dates from silage harvesting in the spring/summer months. So, it would have taken longer in these circumstances to establish a breach of condition was occurring compared to situations where the breach of condition was occurring everyday. I do not consider it is likely there was significant delay to warrant the Ombudsman investigating.
  5. In addition to this, to investigate a complaint there needs to be evidence of significant injustice to Mr X to justify proposing a remedy. As the development is being decommissioned, this injustice has ended. And, I am not convinced the previous occasions of increased traffic on the road outside his home is so significant to warrant a remedy now the development is decommissioned. While I appreciate the increased traffic on several days over the last few years was annoying to Mr X, I do not consider that it warrants the use of public money to investigate further now the development is decommissioned.

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Final decision

  1. I have stopped investigating this complaint and do not uphold Mr X's complaint. The injustice caused to Mr X is not so great the Ombudsman would be likely to recommend a remedy.

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Investigator's decision on behalf of the Ombudsman

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