Summary: Mr X complained about a local waste management site operating without planning permission, producing dust and air pollution. The Ombudsman did not find evidence of fault by the Council.

The complaint

1. Mr X complained about a local waste management site operating without planning permission. He said the Council failed to notice the site’s temporary planning permission had expired.
2. Mr X said the site did not comply with the conditions of its planning permission and regularly produced dust and air pollution. He said this was a nuisance and put local residents’ health at risk.

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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 an organisation’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. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Town and Country Planning Act 1990.
• National Planning Policy Framework.
• The Council’s Planning Enforcement Protocol.
6. 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

7. Section 171A of the Town and Country Planning Act 1990 defines a breach of planning control as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
8. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
9. 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, councils 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 councils to resolve issues through negotiation and dialogue with developers.
10. 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 2021, paragraph 59)
11. Councils have a range of options for formal planning enforcement action available to them.
12. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

The Council’s planning enforcement protocol

13. The Council’s enforcement protocol confirms that, as county planning authority, it is responsible for mineral and waste development.
14. The overall aim of the enforcement function is to control unauthorised development and to remedy unacceptable impacts. The Council will take enforcement action where it is in the public interest.
15. The protocol refers to two main routes to enforcement. The first is reactive, driven by complaints. The second is self-driven, arising from routine monitoring and inspection or chance observation.
16. The protocol states, in general, enforcement action should only be taken when a breach is unacceptable on planning grounds. In deciding whether to take action, the Council shall have regard to breaches of any conditions imposed to protect environmental or amenity impacts.
17. As far as possible, the Council seeks to deal with breaches by negotiation and informal action, supported if appropriate by a planning application to regularise the activity. It will avoid lengthy negotiations. Where swift action is taken to remedy breaches, formal action will not normally be necessary.
18. The Council does not put strict timescales on enforcement investigations. The protocol states negotiations can take time but are important to a good outcome.
19. When the Council receives a complaint about minerals and waste management it will first assess the priority of the alleged breach. It allocates high priority cases to a case worker in one working day. For all other cases, it normally allocates the case in two working days.
20. It is for the case officer to determine the appropriate action, based on the seriousness of the alleged breach. If the case officer decides a breach has occurred, they will write to the responsible party with details of the breach and the Council’s enforcement powers. They will set out any necessary work to address the breach, the timescale allowed for the work, and of the opportunity to apply for planning permission for any unauthorised development.
21. The Council will regularly keep the complainant advised of progress and will seek to tell them about its initial conclusions within ten working days.

Planning enforcement and site visits during the COVID-19 pandemic

22. The Government have not announced any changes to guidance on legislation regarding planning enforcement. However, local planning authorities’ ability to carry out enforcement visits and action may be restricted during the COVID-19 pandemic.
23. A Ministerial Statement on 13 March 2020 encouraged councils to take a pragmatic approach to enforcement.
24. Guidance from the Local Government Association on planning applications told councils to consider the need for site visits on a case-by-case basis.

What happened

25. I have summarised below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
26. In January 2015, the Council granted planning permission to a waste management company (the operator) to run a construction and demolition waste recycling plant. Planning permission was subject to conditions, including:
• The development shall cease on or before 5 years from the date of planning permission.
• Dust mitigation measures shall be carried out in accordance with an Air Quality Assessment dated July 2014.
27. Mr X contacted the Council on 21 April 2021 to report the operator continued to work from the site despite its planning permission having expired in January 2020.
28. After the Council assigned Mr X’s complaint, the case officer telephoned Mr X on 23 April. The officer said the Council was taking steps and was in contact with the operator about the breach. Mr X told the officer dust nuisance from the site was significant and ongoing. Mr X raised concerns about the possible presence of carcinogens in the material processed at the site.
29. The case officer also wrote to the operator on 23 April. They said use of the site should have stopped on 26 January 2020, according to planning permission, but the Council received a complaint about dust nuisance from the site. The officer said the operator was in breach of planning control by continuing to run the site and is liable to formal enforcement action. The officer said they would tell the Ebbsfleet Development Corporation, who now deal with development in that area. The officer asked the operator to contact him urgently and they expected no further reports of dust nuisance.
30. The operator replied on 26 April. It said the lapsed planning permission had ‘slipped through the net’ because of the COVID-19 pandemic. The operator said it intended to make a new temporary planning application to keep working from the site. It said its application would be supported by relevant technical documents so may take a few weeks. The operator said it was in contact with the Environment Agency about dust and would share its response with the Council.
31. Mr X emailed the case officer on 4 May. He asked why the operator’s expired planning permission went unnoticed and who is responsible for monitoring such sites. He also asked for details of the enforcement notice the Council said it would issue. Last, he asked who is responsible for extending the planning permission as he would like to object because there are now three waste management sites near his home.
32. The case officer replied on 7 May. He said the COVID-19 pandemic meant it has not been possible to monitor sites in the normal way, but the Council was seeking to address this. The officer said he advised the plant it was in breach of planning control and liable to enforcement action. He advised the plant the Council expects no further incidents of dust nuisance. He said the operator suggested it will make a new application for temporary planning consent.
33. Mr X said the UK went into lockdown six weeks after the operator’s planning permission became invalid. He said that was ample time for the Council to pick up on it. He said the dust nuisance was an issue throughout the operator’s planning consent. He reported this to the Council and Environment Agency several times, but they did not take action. Mr X said he looked forward to objecting to the operator’s new planning application. Mr X asked the Council to explain how it allowed permission for three waste plants together so close to residents’ homes.
34. The case officer said the operator’s new application, when received, will be advertised in the normal way. He said the consideration of any planning application for a waste plant would consider the cumulative impact on the local environment, would have regard to local and national policies, and any other material considerations.
35. The operator emailed the Council on 12 May with a validation checklist for a new planning application. They asked the Council if it needed any more reports or plans.
36. The Council replied on 3 June. It said the operator could re-use or update some current reports. It listed the plans and supporting documents needed, such as location plan, flood risk assessment, noise assessment, air quality assessment, and ecology impact assessment.
37. The operator said it had commissioned all required surveys but was struggling to get an ecologist on site as they are busy. They hoped to submit the planning application in four to six weeks.
38. The Council noted the delay. It asked the operator to submit the application by 17 August.
39. The operator said it could apply earlier, but as it would not have all technical supporting information it would not be a valid application, so it did not see the benefit in this. The company said it would apply as soon as it had the relevant information and had no intention of causing unnecessary delays.
40. Mr X complained to the Ombudsman on 6 September, having received no substantive reply from the Council.
41. The Council responded to Mr X’s complaint on 24 September. It apologised for the delay but said Mr X had been in correspondence with the planning department. In response to Mr X’s complaint, the Council said:
• When it granted planning permission in 2015 it considered objections about the impact of the site on local residents, including about dust, noise, and traffic.
• The site should have stopped running in January 2020 but did not do so. The Council accepted that should not have happened but said it took steps to address the lapse of planning permission once it was aware.
• Shortly after it granted planning permission, planning responsibilities for the area passed to the Ebbsfleet Development Corporation. It still tried to help Mr X with his concerns regardless of this.
• Routine site monitoring was not a service it could offer during the COVID-19 pandemic and its planning service could not work as normal in identifying and acting on cases like this.
• Mr X did not report the breach until April 2021. The Council then took necessary enforcement steps.
• It recognised the site continued to manage and said it was liaising with the operator about a new planning application. The application was delayed due to the need for site surveys. With an application anticipated, enforcement action was not expedient at the present time.
• Residents can comment on the operator’s new planning application. The Ebbsfleet Development Corporation will decide the application, with advice from the Council.
• The site has an environmental permit regulated by the Environment Agency which will address dust and air emissions.
• It was not aware of any previous complaints about the site. Complaints are investigated when it received reports. It recently took on another enforcement officer to provide extra capacity.
• It relied, to a degree, on reports from members of the public when it came to monitoring planning conditions, including about dust emissions. It did its best to act swiftly in response to complaints and, in this case, it wrote to the operator two days after receiving Mr X’s report.

The operator’s new planning application

42. The operator said its previous planning permission lapsed due to ‘an oversight’ and asked the Council for permission to run on the same terms. The application included assessments on noise, flood risk, air quality, and ecology, as well as details of wheel washing for vehicles on site.
43. Local residents raised objections, including about traffic, congestion, air pollution and dust. Residents also raised concerns about the environmental impact of the site and the implications for long term health. They said previous dust mitigation measures on site were inadequate.
44. The Council wrote to the operator in December 2021, asking for further information, including on air quality, dust mitigation, and the operator’s correspondence with the Environment Agency.
45. The operator wrote to the Council after the public consultation period closed. It said the Environment Agency visited in April 2021, after anonymous complaints about dust. Following this visit, the waste company set up a new water main around the site and installed sprinklers at various points. It said the Environment Agency continue to visit regularly as part of environmental permit obligations.
46. The operator also sent an updated air quality assessment and dust management plan. The new dust management plan included visual inspections by the site manager and workers during the day, and for the site manager to assess the need for any remedial action.

My investigation

47. In response to my investigation, the Council told me the onus for ensuring waste sites work in line with planning controls rests mainly with the operator.
48. The Council said it recently appointed more enforcement resources to help with monitoring existing planning permissions and waste sites. It therefore does not anticipate a similar scenario arising in future.
49. On dust and air pollution, the Council said this could be a statutory nuisance, meaning it is mainly for the Environment Agency as the relevant pollution control authority. It said a compliance assessment by the Environment Agency on 17 June 2021 found dust at the site was not a matter of concern.
50. The Council said, because the site’s temporary planning permission had expired when Mr X complained in April 2021, it could not take enforcement action over a breach of a planning condition. However, it advised the operator of the complaint and asked them to ensure there were no further reports of dust nuisance. The matter was raised with the Environment Agency, and, because of their assessment, dust levels were deemed acceptable.
51. The Council told me it was still assessing the operator’s application for retrospective planning permission. However, if the Ebbsfleet Development Corporation grant planning permission, the Council anticipates it will include a condition controlling dust and air quality.

Analysis

52. The operator’s planning permission expired in January 2020, yet the site continued to run and was still doing so when Mr X approached the Council in April 2021. I can therefore appreciate Mr X’s frustration.
53. Government guidance at the start of the COVID-19 pandemic confirms councils were not expected to carry out site visits. The Council said its resources were stretched, meaning it could not carry out its usual monitoring. I therefore do not find fault with the Council for not carrying out any monitoring during the pandemic.
54. Mr X pointed out the operator’s planning permission expired six weeks before the Government imposed COVID-19 related restrictions. He considers the Council should have acted sooner. While I do not dismiss Mr X’s complaint, the Council is correct the onus is on the operator to comply with planning control. I consider criticising the Council for not following up on each breach or lapsed planning permission would place too demanding a duty on it. In addition, there is no guidance or legislation requiring councils to police planning breaches or lapses of permission in the way Mr X would like.
55. Once the Council learnt of the planning breach in April 2021, an officer contacted the operator within two days, and the operator eventually submitted a new planning application. This was in keeping with the Council’s enforcement protocol.
56. While I appreciate there was a delay in the operator submitting a new planning application, that was because it needed to get important reports and assessments. I do not consider there was any unreasonable delay on the Council’s part when it came to investigating the possible planning breach.
57. Mr X and residents commented on the operator’s new planning application and made the Council aware of their concerns.
58. The fact the site ran without planning permission is not in itself an injustice to Mr X or local residents. One of the main concerns was about dust and air pollution. On the evidence seen, this is something the Environment Agency considered. It did not find any breaches in that regard but did ensure the operator improved dust control measures on site.
59. In addition, as part of the operator’s new planning application, it updated its dust management plan.
60. Mr X provided me with video footage of the site which he said showed dust mitigation measures were not followed and the site’s new sprinkler system was ineffective.
61. While I do not dismiss Mr X’s evidence, this represents a snapshot of activity on site. I do not consider it conclusively demonstrates the site does not consistently follow dust mitigation measures. I am also unable to comment on the effectiveness of the site’s sprinkler system.
62. I appreciate the Environment Agency visit took place on one day, rather than over several days, and therefore to an extent also represents a snapshot of events. However, the Environment Agency has suitable professional experience in carrying out such visits and its findings are relevant to my investigation.
63. It is not the role of the Ombudsman to say that dust mitigation measures are ineffective, or to suggest what measures should be in place. That is for the relevant professionals to decide. We can only comment on the process and the Council’s consideration of the issues.
64. I have not seen evidence the Council did not properly consider dust or air pollution levels. Nor have I seen evidence showing there was a statutory nuisance or environmental breach.
65. Planning enforcement action is at the Council’s discretion. It decided to take informal action to negotiate on the site owner submitting a new planning application. That decision was in keeping with national planning guidance and with the Council’s own enforcement protocol. I therefore do not find the Council at fault.

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Final decision

66. I have completed my investigation. The Ombudsman did not find evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman