South Lakeland District Council (18 013 089)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 04 Jul 2019

The Ombudsman's final decision:

Summary: The Council acted without fault in reaching its decision on a small industrial unit planning application, and in the subsequent environmental investigations into concerns about the site’s operations.

The complaint

  1. Mr X complained about the actions of the Council in approving a chimney stack for a spray booth within a planning application for a small industrial unit close to his property.
  2. Specifically, he complained the Council did not properly ensure the chimney stack complied with national regulations on discharge stack heights for polluting emissions, which resulted in inadequate dispersion of the emissions from the spray booth.
  3. Mr X said this resulted in an adverse impact on the outdoor enjoyment of his home as well as smells and potential particulate deposits outside and inside his property.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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)

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How I considered this complaint

  1. I have spoken with Mr X about his complaint and considered evidence and information he has provided, including photographs.
  2. I have considered comments and information provided by the Council and the relevant planning application available on its website.
  3. I have considered:
    • The government’s Technical Guidance Note (Dispersion) D1; and
    • Defra Process Guidance Note 6/33 (11) - statutory guidance for wood coating permitted businesses.
  4. I have discussed the issues with an officer involved in the case at the time.
  5. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

Planning and Environmental law and guidance

  1. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
  2. The planning process requires councils to balance the relevant planning considerations (which may sometimes conflict with each other) before they make a judgement on whether a development or use of land is acceptable in planning terms.
  3. Before planning decisions are made, applications are publicised to allow the public and other consultees to comment. The Council should take account of the comments and, in so far as they relate to material planning considerations, decide how much weight to give them.
  4. A planning approval merely shows the Council is satisfied the application is acceptable in terms of planning policy and other planning considerations. A planning approval does not give a developer the right to infringe other laws or the private rights of individuals.
  5. Councils may act to protect the public from nuisance and pollution. Environmental protection officers may serve abatement notices to stop nuisances. They may also prosecute if they find evidence of breach of Acts of Parliament aimed at protecting the public from pollution.
  6. Officers have the power to visit sites and enter private land to protect the public from alleged breaches of environmental protection regulations. Certain types of covert surveillance are regulated and require special authorisation.

What happened

  1. Mr X lives in a small village which was built around a Victorian Mill. The Mill ceased its original use many years ago, but the land continued to be used for a variety of commercial and industrial uses.
  2. A unit directly behind Mr X’s property was given retrospective planning permission to change its use from a storage warehouse to a light industrial use. The development included a wood burner chimney and a spray booth. The Council publicised the application and took account of comments from the public and environmental protection officers. The Council considered local and national planning policy and approved the application.
  3. Mr X objected to the application and a summary of his objections can be seen in the case officer’s report.
  4. After the application was approved, complaints about smoke and spray odour continued. The complaints were referred to environmental protection officers (EPOs). EPOs visited the site unannounced and found no evidence of a nuisance or breach of air pollution regulations. The Council wrote to the site operator to say it had received complaints and that it might carry out site visits to determine whether there was a nuisance or breach of air pollution regulations.
  5. I discussed the case an EPO involved in the case. The officer said the team carried out many visits but found no evidence to justify formal enforcement action. However, the visits resulted in improvements to the site operator’s practice.

My findings

  1. The Ombudsman is not an appeal body. Our role is to review the process by which decisions are made and, where we find fault in process, to determine whether a significant injustice is caused.
  2. The planning process included consideration of the plans, planning policy, and objections from neighbours and comments from other consultees, including environmental health officers.
  3. The planning application went before the Council’s Planning Committee because there were objections supported by the Parish Council. The Committee visited the site, observed the spray booth flue from near Mr X’s property and had all the Environmental Protection team’s assessments before it. It also had the objections from Mr X and other residents, so it was fully aware of their concerns.
  4. The government’s National Planning Policy Framework 2012 (NPPF), updated in 2018, stets out that local planning authorities should look to approve sustainable development and encourages business development, which provides local employment.
  5. The Council must have strong planning reasons to refuse planning applications. The applicant may appeal a refusal to the Planning Inspector and the Council should have a reasonable expectation it can defend its decision, given the cost to the public purse of an appeal. An alternative to refusal is to condition the planning permission to mitigate possible harm from the development. This is what happened in this case.
  6. The Council took account of the environmental expert advice and conditioned the design of the spray booth flue and the booth itself. The height of the stack conformed to the requirements of the Defra Process Guidance Note 6/33 (11) - statutory guidance for wood coating permitted businesses. This allows variance from the government’s Technical Guidance Note (Dispersion) D1, which provides calculations for stack heights.
  7. The application was assessed by an experienced Environmental Protection Officer (EPO) who provided advice on the suitability of the spray booth. This allowed the stack to be lower than the Technical Note requirements, as the booth would provide enhanced filters.
  8. I am therefore satisfied the Council properly assessed the application details, sought appropriate technical oversight and provided the necessary information to the Planning Committee.
  9. The Committee had all necessary information on which to base its decision, including clear objections from neighbouring residents.
  10. I therefore find no fault in the way the planning decision was made. If we do not find fault in the decision-making process, we do not comment on the merits of the decision itself.
  11. Following the planning decision further complaints were made to environmental protection. EPOs wrote to the site operator and visited the site. The Council considered what it had found during visits against its powers under environmental protection regulations. It followed the process we expect and so I find no fault in the way it investigated these matters.
  12. Planning decisions have a limited role in managing possible pollution. Conditions on planning permissions should be followed and this will minimise the risks. However, if the public considers there is nuisance from the activities of the developer, in the form of noise or pollution, the matter then falls under the Environmental Health service or the Environment Agency to investigate and, if appropriate, take action to stop the nuisance or breach or relevant regulations.
  13. In this case the Council’s Environmental Protection team investigated the concerns fully during 2017. The Environment Agency carried out a further investigation about waste disposal on the site in 2018 and, in an unannounced follow-up in summer 2018, found all their advice had been followed.
  14. The Council and Environment Agency both provided Mr X and other neighbours with regular updates on their investigations.
  15. I recognise Mr X feels the Council has failed to prevent and then stop what he considers to be unacceptable odours and emissions from the site in question. However, the Council has acted in line with the necessary planning and then environmental procedures. It does not have to provide full-time monitoring, nor does it have the publicly funded resources to do so. Its investigations have not evidenced a statutory nuisance that would lead to formal action against the site operator. Where there were shortcomings in the site’s operations the Council worked constructively with the operator and secured improvements that are in line with good operating practices.

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Final decision

  1. The Council acted without fault in reaching its planning decision in this case, and in the subsequent environmental investigations into Mr X’s concerns.
  2. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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