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Isle of Wight Council (20 009 248)

Category : Planning > Other

Decision : Upheld

Decision date : 09 Jul 2021

The Ombudsman's final decision:

Summary: The Ombudsman found no fault on Mr F’s main complaint of the Council failing to take enforcement action for breaches of planning consent by a nearby business. Nor was it fault to not insist on a new planning application. The Council was entitled to consider revisions under a variation clause. It failed to consider his complaint within the timescale set out by its complaints procedure. The agreed action remedies the injustice caused.

The complaint

  1. Mr F complains about a neighbouring commercial site which applied for, and received, planning consent on appeal, and the Council’s failure to:
      1. Respond to and take enforcement action for breaches of planning consent;
      2. Insist the site owners make a further application because of all the revisions made following the previous consent; and
      3. Give him correct information.
  2. As a result, his quality of life will be affected through increased activity and noise on the site.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)

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How I considered this complaint

  1. I considered all the information from Mr F, the notes I made of our telephone conversation, and the response from the Council to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr F and the Council.

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What I found

  1. Mr F’s home is close to an area owned by a private company (the Company). The Company wants to redevelop it. It originally wanted to buy a row of properties, including Mr F’s, and demolish them to expand its operations. The Company runs an operation involving the movement and storage of vehicles.
  2. Although the Council refused the application, the Company successfully appealed it to the Planning Inspectorate who granted consent subject to conditions. The Company was unable to buy all the row of properties, which is what its planned to do under the scheme, and so, says Mr F, it sought to revise it.
  3. Mr F is unhappy with the way the Council dealt with the revisions. He argues the changes mean the Company should have sent a new planning application instead. The public lost the opportunity to be consulted. He is unhappy one of the changes means the waiting/loading lanes for lorries are now within 1 metre of his house. The yard operates 24 hours a day and he is disturbed by noise and exhaust fumes. He argues environmental and noise impact surveys done for the original application are no longer valid. He believes the Council failed to enforce conditions of the planning consent and failed to respond properly to his complaint.

Complaint a): Enforcement for breach of condition

  1. Mr F argues the Council failed to act against the Company for breaching planning consent. One of the conditions of consent said the development had to follow the original plans approved by the Planning Inspector. He considers the Council wrongly relied on another condition when it agreed to revisions of the scheme.

Analysis

  1. Mr F believes the Planning Inspector’s condition, which said the scheme should be carried out according to listed plans (condition A), means the Company had to follow the approved plans. He does not accept the Council’s argument that another condition (condition B) said despite condition A, no development shall start until the layout of the yard and flood mitigation works were sent to the Council and approved. The development shall then be carried out according to the approved layout and flood mitigation works.
  2. Condition B is a variation condition. The layout of the yard and the flood mitigation works did not need to match what the Planning Inspector had seen, provided the Council agreed to them. It was not fault, therefore, for the Council to refuse to act against the Company for any breach Mr F alleges of condition A that was covered by condition B. I found no fault on this complaint.

Complaint b): Further application needed

  1. Mr F argues the revisions to the scheme would see waiting/loading lanes for lorries pass within a metre of his house instead of much further away under the approved scheme. He believes the revisions needed a fresh planning application.
  2. He also argues the revisions mean the environmental and noise impact studies for the original scheme were no longer valid and needed updating. He says the Company revised the scheme because it could not buy all the nearby properties which Mr F says was because it refused to pay the owners a fair price for them.
  3. In response to my enquiries, the Council confirmed the Company sent a revised drawing of both the yard and the flood mitigation works. It also required the Company to carry out consultation with the public living nearby, which it did. It sent the Council the results of this when it applied to discharge the condition. It confirmed updated information came with it about noise impact because of some of the properties remaining. This was considered by specialist consultees and approved. The Highways team and the environmental health team considered the plans.
  4. The Council says the impacts of the ‘appeal scheme’ and the ‘variation scheme’ under condition B were considered during the appeal before the Planning Inspector. It noted a paragraph in the Planning Inspector’s decision referring to the ‘appeal scheme’ and the yard being closer to the properties should they be kept. The appeal scheme was sent during the appeals process and included an alternative approach to the layout of the yard because of the failure to buy all the properties in the row. Condition B gave the Council control over the layout of the yard. This was because the Company would need to change the design of the yard layout around any remaining properties.
  5. From 2018, the Council explained it received just one report from Mr F about noise from refrigeration equipment on lorry trailers opposite his house. The Council wrote to the Company and asked Mr F to keep diary logs. Officers were invited to visit the Company site and were satisfied with its explanation about keeping the equipment. Completed diary logs from Mr F did not show a nuisance. The Council installed noise monitoring equipment in his home when it received further reports. The recording was limited and there was no evidence of a statutory nuisance. Since then, it received no further reports.
  6. The Council explained it could not provide all the documents about the discharge of Condition B. During a move and reorganisation, some paper files were destroyed as it moved to working digitally. It carried this out according to its document retention policy, a copy of which I have seen.
  7. The Council provided copies of the following:
  • An air quality technical note dated May 2018: This looked at the potential air quality impact on the properties if not all of them were demolished and some were kept. It showed the properties not demolished. This was about the impact from works during the demolition and construction works and followed on from that done for the original application. The risk for human health effects was considered low. Remaining properties were likely to experience similar effects as described in the original report. It also considered the predicted air quality from vehicle emissions on completion of the development.
  • An acoustics memo prepared to assess the potential noise and vibration impact during construction and operational stage of the variation of the approved appeal scheme: This considered road traffic entering and leaving the site, traffic on a nearby road, noise generated by dropped trailers and slow-moving vehicles waiting to enter. It referred to new traffic waiting lanes next to remaining properties, new check-in booths and traffic, as well as a new drop off and taxi car park. It noted there would be an increase in night time noise from a higher number of dropped trailers stored on part of the site which was slightly further away than under the approved scheme. It also noted demolition of some buildings to the rear meant some loss of screening of traffic noise and the relocation of the waiting lanes would possibly increase noise levels to the rear of the properties.

The modeling used included a 2-metre-tall absorptive noise barrier between the development and the remaining properties. This found a 3dB-5dB increase in noise to the rear of the properties.

  • The response from the Environment Agency to the application to discharge of condition B about flood mitigation measures. It made some comments which were acted on.
  • A copy of the environmental health team’s response to the discharge of several conditions. The Council accepts it did not specifically refer to Condition B but did refer to the operation plan, which showed properties being kept.
  • An operations plan.
  • The Highways team’s response to discharging conditions.
  • Consultation document: This explained the Company agreed to carry out consultation with the residents to ensure they were fully aware of the proposed plans and allow them to put forward their representations before the final submission of plans. It named Mr F as one of those consulted which resulted in meetings. The meetings included an overview of the project, an explanation of conditions, its aim to discharge the variation condition with a revised scheme, details of the project, a discussion about possible boundary treatment, and the chance for them to put forward ideas.

They were allowed 3 weeks to consider the scheme and make suggestions. It detailed dates of contact with Mr F which included emails and meetings. It met with the local ward councillor and the local town council.

Analysis

  1. It was not fault for the Council to deal with these revisions by way of condition B instead of requiring a new planning application. This is because the Planning Inspector included this condition for the very purpose of allowing the Council to agree to variations to the yard and flood mitigation.

Complaint c): Correct information

  1. Mr F complains the Council failed to investigate his complaint, ignored his letters, and provided him with incorrect information when it replied. He says the incorrect information is about the need for consultation and the variation condition. He claims the Company failed to consult with residents and says he was just handed a copy of the revised plans and told the Council had already approved it.

Analysis

  1. I am satisfied the evidence shows Mr F was consulted by the Company.
  2. I am also satisfied the Council did not give Mr F incorrect information as claimed.
  3. I also considered Mr F’s unhappiness with the way the Council dealt with his formal complaint. The Council’s complaints process has the following stages:
  • Stage 1: It will acknowledge a complaint within 3 working days and a complainant is told who will investigate the complaint. A full response is sent within 20 working days; and
  • Stage 2: This is considered by the head of Service.
  1. I note the following about the complaint handling:
  • 5 May 2020: Mr F complained to the Council about the alterations proposed to the approved scheme/breaches of conditions;
  • 25 June: Mr F again wrote to the Council about his complaint;
  • October: Mr F left a message with its contact centre about his complaint;
  • 5 November: The Council sent him its stage 1 complaint;
  • 9 November: Mr F asked the Council to take his complaint to stage 2; and
  • 2 December: The Council sent Mr F its stage 2 response, rejecting his complaint and signposting him to complain to us should he remain unhappy.
  1. The Council failed to keep to its stage 1 timescale as the response to Mr F’s complaint was sent 6 months after he first complained. I also note he contacted the Council three times before it responded. I consider this is fault. It caused him injustice in the form of distress (frustration and inconvenience).
  2. There was no time scale set out for its stage 2 response and the three weeks taken to provide it was not an unacceptable amount of time.

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Agreed action

  1. I considered our guidance on remedies.
  2. The Council agreed to carry out the following action within 4 weeks of the final decision on this complaint:
      1. Send Mr F an apology for its failure to deal with his complaint within its own timescales; and
      2. Pay him £100 for the distress this failure caused.

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Final decision

  1. The Ombudsman made the following findings on Mr F’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman

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