The Ombudsman's final decision:
Summary: Mr X complains the Council has not dealt properly with planning permissions for a quarry site. The Council is at fault because it delayed taking enforcement action and has not properly considered whether enforcement action is necessary. Mr X has suffered distress. The Council should pay Mr X £200 for his distress, conduct a new review of compliance with planning permission and reconsider what action it should take.
- The complainant, whom I shall refer to as Mr X, complains the Council has not dealt properly with planning permission for a quarry site near his home because:
- the quarry operations have no planning permission and the Council has taken no action about unauthorised activity;
- There has been no consultation about the import of materials for restoration of the site.
- There has been no review of permission and an EIA has not been completed;
- The Council has not taken action about reducing the height of overburden mounds; and
- Quarry liaison meetings have not taken place & a planning application was not notified as agreed it would.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I spoke to Mr X and considered the details of his complaint as well as the Council’s response. I reviewed documents sent by the Council and Mr X. I have reviewed planning documents available to the public.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Planning enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.
- A Mineral Planning Authority may set a date for a periodic review of mineral permissions. This may not be earlier than 15 years after the date which the conditions are determined. (Schedule 14 Enviroment Act 1995)
The planning applications
- In 1999, planning permission A for mining operations was granted under Schedule 13 of the Environment Act 1999 in respect of an original 1950 permission.
- Further planning permission B was granted in November 2002 for a variation of conditions to permit the importation of inert materials and restoration works. The decision notice states extraction of minerals should stop in October 2007, with restoration within one year from cessation of extractive operations. Planning permission B sets out a condition permitting the import of inert materials to specified levels and expected volumes.
- In 2010, planning permission C was granted for an extension of the quarry - extending operations to 2027 including restoration of the site.
- In 2010, planning permission D and E were granted to vary condition 1 as part of the 1997 and 2002 permissions – these decisions were later quashed by the High Court.
- The Ombudsman only looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
Planning permissions, reviews and enforcement
- Because the High Court quashed planning permissions D and E, planning permissions A, B and C are applicable. The Council says as extractive operations are not being undertaken, the relevant planning permission is permission B.
- The Council says current works in the pre-existing quarry site fall under planning permission B. Works in the extension fall under planning permission C.
- The Council says, “There would be no requirement to undertake specific public consultation on the import of materials; it would be included in the consultation undertaken on any associated planning application and addressed within the planning conditions attached to planning approval.” Mr X says materials imported to the pre-existing quarry site operating under planning permission B, have included contaminated waste and exceeded the volumes permitted.
- The Council says it has considered compliance against planning permission and that the quarry operator would require a licence from the Environment Agency to import any materials. The planning permission being relied on refers to specific predicted volumes of inert materials. The issues of potential contamination and excess volumes are therefore legitimate considerations in respect of compliance with planning permission.
- The Council has clearly attempted to consider the planning history and permissions regarding the quarry site. Compliance monitoring reports show it has considered the current conditions on site and whether enforcement action is necessary. The monitoring reports provided by the Council show that compliance monitoring has taken place against conditions set out in planning permissions D and E.
- However, as planning permissions D and E have been quashed, and the Council accepts that current activities are being undertaken under planning permission B, the compliance monitoring has not been carried out correctly. The Council’s decisions concerning action against breaches or potential breaches of planning permission are therefore flawed because they are not based on accurate information. This is fault by the Council. Mr X may be affected by breaches or potential breaches of planning permission that the Council has not considered correctly.
- The Council is not compelled to undertake a periodic review of mineral permissions after 15 years. I agree with the Council. However, in its complaint response to Mr X the Council said:
- it would usually only seek a review of planning conditions when monitoring visits have revealed an issue that is not adequately regulated by the planning conditions, which the operator has been made aware of and has not been able to address; and
- it would improve its compliance monitoring to identify if a review should be undertaken.
- The Council agrees that liaison meetings have not taken place as frequently as they should have. I have seen minutes of those meetings that did take place. This is fault by the Council. Mr X did not suffer injustice as a result.
- To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action.
Within 4 weeks of this decision:
- Pay Mr X £200 for his distress.
Within 12 weeks of this decision:
- Complete a new review of compliance monitoring at the pre-existing quarry site, ensuring current and past activities are reviewed against planning permission B, making reference to any known or suspected contaminants, and include a recommendation whether a periodic review is appropriate;
- Consider the outcome and recommendations of the new compliance monitoring report and decide whether a periodic review is required and, if found, how any breaches or potential breaches of planning permission should be addressed; and
- Write to Mr X explaining the outcomes and decisions above.
- I have found fault by the Council causing injustice to Mr X. I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman