Summary: Mr X complained about the Council’s delayed response to a breach of planning control at a quarry near his house. The Council was not at fault.

The complaint

1. Mr X complained about the Council’s delayed response to a breach of planning control at a quarry near his house which meant the company operated without planning permission for waste recycling operations for several years.
2. Mr X said this unlawful use caused increased lorry movements causing infrastructure damage, amenity impact through increased noise, dust and vibration, safety fears and impact on wellbeing. He was also concerned about the change in council transport policy and limited mineral sales and reserves data. Mr X said he would like the Council to enforce planning controls immediately.

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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. 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

4. I read Mr X’s complaint and supporting documents and spoke to him on the telephone.
5. I spoke to the Council and considered its comments about the complaint, the supporting documents it provided and the case officers report.
6. I considered the Council’s policies, and relevant law and guidance as set out below.
7. Mr X and the Council had an opportunity to comment on the draft decision. We considered comments received before making a final decision.

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What I found

Relevant law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations say they should not.
9. Planning considerations include issues like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Section 106 agreements

11. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a type of contract that is legally binding on the parties that sign it, and the successors in title to the land it applies to.
12. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.

Enforcement

13. Councils can take enforcement action if they find planning controls have been breached.
14. 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.

What happened

15. Mr X lives close to a quarry which had mineral extraction planning consent that was due to expire last year.
16. Several years ago, the Council carried out a site monitoring visit at the quarry and spoke to the quarry operator about a waste recycling use that was operating without planning permission. This was a breach of planning control. The Council wrote to the quarry operator and said it would need to apply for planning permission to recycle waste material at the quarry.
17. During the next few years, the Council discussed the unauthorised waste recycling with the quarry operator. The quarry operator agreed to apply for planning permission for the new use and commissioned planning consultants to regularise (which means, to make lawful) the waste recycling. The Council said the quarry operator delayed submitting the planning application because of a change in planning consultant.
18. About three years ago, the quarry operator submitted a planning application to the Council to regularise the waste recycling. Mr X objected to the planning application and said he had not been aware of the waste recycling use at the quarry until this point. Mr X also said from around this time, he had noticed an increase in lorry movements, causing vibrations, impacting on the local road network and amenity of local people.
19. The Council completed an enforcement report for the waste recycling breach in planning control. The report found the waste recycling operations complied with the approved development plan policies. It also considered eight enforcement alternatives and recommended a legal agreement between the quarry operator and the Council to control waste recycling until a planning application was determined.
20. The Council said the planning application process was then further delayed because of:
• the COVID-19 pandemic;
• a high number of objections from the local community; and
• the fact that the mineral extraction planning consent was about to expire, so the Council advised the quarry operator to withdraw the separate new recycling use application and make a combined application for both mineral extraction extension and waste recycling.
21. The quarry operator agreed to withdraw the waste recycling planning application and to submit a combined planning application, as the Council had recommended.
22. Mr X complained to the Council. He complained about a long history of enforcement failure where the quarry operator recycled waste without permission and continued to do so because the Council failed to take the planning application to committee. He also queried the consistency of planning policy and strategy documents and the Council’s reliance on mineral extraction estimates.
23. The Council responded to Mr X’s complaint. It said it wrote and spoke to the quarry operator about the waste recycling breach of planning control and advised the submission of a combined planning application. The Council explained the enforcement process to Mr X and said where an operator is about to or has submitted a planning application, it would not normally carry out enforcement action, especially where there were no clear development plan conflicts. It told Mr X it would consider mineral extraction and reserves in the planning application process.
24. The Council approved the combined planning application. Consideration was given to the development plan documents and the quarry extraction rates and reserves and the need for the quarry extraction extension in this location. It included conditions relating to operating hours, dust reduction, number of lorries and their direction of travel, mineral extraction amounts and noise levels. A Section 106 financial contribution was agreed for the repair and reinforcement of a local road.

My findings

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant. I have considered the processes by which the decisions were made and my findings are as follows.
26. Planning enforcement is discretionary and government guidance encourages negotiation and advises that formal action should generally be used as a last resort. The evidence shows the Council worked with the quarry operator when it became aware of a planning breach and two planning applications were submitted. Until the first application to regularise the recycling use, Mr X was not aware the quarry was used to recycle waste. It was for the Council to decide whether formal enforcement action was appropriate. The Council also wrote an enforcement report which considered a number of enforcement actions. It recommended a legal agreement between the operator and the Council for waste recycling until a planning application was determined. This is a judgement it is entitled to make.
27. The Council approved the combined planning application this year. The application considered relevant policies in the approved development plan and mineral extraction and reserve figures.
28. Although it was a long process from first finding the breach of control and resolving it, the Council has been able to account for its actions and decisions. Before it made its decision, it considered the breach of control and its powers. It followed the decision-making process we would expect, and because of this, I find no evidence of fault.
29. In any event, I have not seen evidence to suggest that the impact from recycling has changed significantly since before the combined application was approved. I spoke to Mr X, who confirmed that nothing much had changed since the application was approved. Because of this, even if I did have evidence of unreasonable delay, I would not be able to show the outcome would have been any different.

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Final decision

30. I have completed my investigation, finding no fault.

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Investigator's decision on behalf of the Ombudsman