Summary: Mrs B complains the Council did not properly consider its own policies when approving a planning application. She says the Council’s decision led to an increase in the number of HGV’s using a road near her home. This causes problems with noise, pollution and road safety. The Ombudsman does not find fault in how the Council considered the planning application or responded to Mrs B’s concerns.

The complaint

1. The complainant, who I refer to as Mrs B, complains the Council approved the extended use of a nearby waste management facility. She says the Council did not properly consider its own policies when deciding the application. She says the number of HGV movements has increased. Mrs B says the HGV’s drive past her back garden constantly throughout the day She says it has an unacceptable impact in terms of noise and vibrations. Mrs B says she can no longer spend time in her garden due to the constant clattering of waste lorries. She is also concerned about the level of pollution and road safety.

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What I have investigated

2. I have investigated Mrs B’s concerns about the way the Council decided the planning application and its response to Mrs B’s complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

6. I reviewed the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments.

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What I found

National framework

7. The Department for Communities and Local Government has produced a National Planning Policy for Waste (“the Policy”). The policy says when deciding a waste planning application, councils should consider, among other things, the impact on local amenity and the suitability of the road network.

Council policy

8. The Council’s Waste Local Plan (“the Plan”) sets out its policy relating to waste facilities.
9. The Plan says larger capacity facilities need to be well-related to the principle areas of waste. That is, within or close to the main urban areas along the coast and in the north and east of the county. It says suitable smaller facilities to meet local needs be needed in rural areas. It says industrial sites are suitable locations for waste management facilities.
10. It says facilities must be within built up areas or on suitable, previously developed land outside built up areas and with good access to the lorry network. It says the Council will approve new waste management facilities on the site of existing facilities, unless the continued use of the site would impact unacceptably on local amenity.
11. The Plan says the Council will approve facilities where transport links are adequate or can be improved without an unacceptable impact on amenity, character, or the environment. It says materials should be capable of transportation to the lorry network with minimal use of local roads.
12. In relation to any strategic waste sites the Council has allocated in its policy, it says the sites should be located within 3km of the corridor either side of the roads that form the lorry network.

Background

13. Mrs B lives in village that has a B-road passing through it. Mrs B has lived in the village for many years and her home backs onto the road. Further along the road is an industrial estate. The village is also close to a main A-road.
14. In 2011 the Council approved planning permission for a waste management facility on the industrial estate. The facility recycles waste materials. The permission included a condition that it could not manage more than 25,000 tonnes of waste a year. It said this was to protect the environment and amenity.
15. In 2015 the company that owned the site applied for planning permission to extend its capacity to 75,000 tonnes per year. The Council approved the application and included a condition limiting the site to 75,000 tonnes. Again, it said the reason for the condition was to protect the environment and amenity.
16. The local Parish Council and several residents objected to the 2015 application. The objections focused on the increase in HGV movements through the village.
17. The Council produced a report that sets out how it reached its decision to approve planning permission in 2015. It addressed the following issues:
• Need for development
• Location of development
• Impact on amenity
• Impact on highway capacity and road safety

Need for Development

18. The report says the application would allow more waste to be diverted from landfill and recovered through energy from waste. It says there is a need for this use in the area. No other sites of this kind exist in the county.

Location of development

19. The report says the use of industrial sites for waste purposes is supported by the Plan. It says the waste facility is not out of context with the other businesses in the industrial park in question. It considered the site was a suitable location.

Impact on amenity

20. The report says there were a number of representations about the impact on amenity from increased HGV numbers. It says the potential impact is from noise. However, it says the Council does not consider the application would change the nature of the impact HGV’s have. It says the HGV’s would be no larger or noisier than any which access the wider site already. It says on average 24 HGV’s would access the applicant’s site each day, which it does not consider a significant number.

Impact on highway capacity and road safety

21. The report says the impact on the highway network is considered limited. It says highways officers raised no concerns. It says the capacity of 75,000 tonnes will limit the number of HGV’s, as it means on average 24 HGV’s a day. That being 48 movements of HGV’s accessing and leaving the site along the road. It says the highway has capacity to safely manage this level of HGV’s.

Complaint by Mrs B

22. In early 2019 Mrs B complained to the Council about the planning decision. She said the number of HGV movements had increased, to the point she could no longer use her garden due to the constant noise from HGV’s. Mrs B says the company misled the planning committee on the average number of lorry movements. She says the committee did not consider the following:
• The facility was justified on the basis of local need but there is no evidence of local need and many of the HGV’s entering the site come from other parts of the country or the continent.
• The highway authority recommended a condition with a maximum number of HGV movements.
• Locals conducted a traffic survey which showed the average number of HGV movements was far higher than 48 per day and could continue to increase.
• The Plan sets out a maximum of 50,000 tonnes per year, for small scale operations in rural areas.
• The Plan says there should be minimum use of local roads. The road in question is unsuitable as it is narrow and has tight bends.
23. Mrs B says important information was either ignored or not presented to the planning committee.
24. The Council’s response did not accept the any fault in how the Council considered the application. It followed up with the company and confirmed it was not operating above the 75,000-tonne capacity.
25. The Council says it was not appropriate to put a maximum number of HGV movements per day in the conditions. It says the 75,000-tonne condition limits the number of movements. It checked with the company and found no evidence the average number of HGV movements was outside its estimate.

Findings

26. I do not question the impact HGV’s using the B-road has on local residents. However, I can only consider any injustice this causes if I find fault in how the Council decided the application. I do not find fault in how the Council considered the application. I will address each of the points Mrs B raises in the following paragraphs.

Local need

27. The planning committee report shows the Council did consider local need.
28. I understand Mrs B’s comments that much of the waste may come from outside the county. However, this does not mean it does not contribute to a local need. The Council has set out in the report that this is a more sustainable use of waste. The previous application in 2011 showed it would reduce mileage compared to other waste facilities. It says there are no other waste facilities of this type in the county.
29. This is all in keeping with the Plan. It does not say in the Plan that all the waste must come from local sources and it is unlikely the council would restrict a business by placing a condition of that nature. The Council has properly set out its rationale for why the development meets a local need.
30. It is not my place to question the Council’s decision if it has reached that decision properly.

Highways recommendation

31. I have reviewed the highway authority’s response to the consultation. It does say the Council should include a condition for a maximum number of HGV movements. The Council has not made a specific condition limiting the number of HGV movements. However, it says the maximum capacity of waste will limit the number.
32. It is my view the Council has properly considered this matter. It addresses the number of HGV movements in the report and properly set out its rationale. It does follow that the restriction on capacity will limit the number of movements over the space of a year.
33. I understand this means there may be variation in the number of movements from one day to another and some days the number will exceed the reported average. However, the Council considered it was not reasonable to restrict the daily number. The report shows it took account of the existing permissions and the impact on local amenity when making its decision.
34. I can see no evidence of fault in how the Council reached its decision and I cannot question the merits of that decision.

Number of HGV’s

35. Mrs B says a survey by local residents showed numbers well above the reported average.
36. There is no condition limiting the number of HGV’s so this is not something the Council could investigate from planning enforcement point of view. Even so, it has followed up with the company and found no evidence the number of HGV’s over the space of a year is higher than the average of 48. It also confirmed the site is operating below the maximum capacity of 75,000 tonnes.
37. I would not be able to make a judgement on whether the company provided misleading information about the expected average numbers. I can only investigate how the Council considered the information it had available when making its decision. For the reasons set out at Paragraph 32, I can see no evidence of fault in how the Council considered the information when reaching its decision.

Small scale operations

38. The Plan does say larger operations should be near urban areas and small-scale operations can go ahead in rural areas. It defines small-scale operations as with a capacity below 50,000 tonnes per year. However, it also says proposals should be in built up areas, or suitable previously developed land outside built up areas. It also says industrial sites are suitable locations for waste management facilities.
39. The committee report shows the Council considered this point. It noted the location was an industrial estate that already includes a range of manufacturing uses and a depot for vehicle. The report finds a waste management facility would not be out of context in this location.
40. I also note the application was for a larger facility on the site of an existing facility. Therefore, the general suitability of the site for a waste facility was already established.
41. The Plan says the Council will approve new facilities within the boundaries of existing sites unless the continued use of the site would impact unacceptably on local amenity. The Council has considered the impact of the increase on local amenity in terms of noise, odours and traffic generation in its report and found this does not unacceptably affect local amenity.
42. I recognise Mrs B is concerned the 2011 permission only allowed a 25,000-tonne capacity to protect local amenity. The 2015 application restricted capacity to an extended 75,000 tonnes, also to protect amenity.
43. Mrs B does not believe the Council properly explained why the original condition was necessary to protect local amenity, and it has now allowed an extended capacity. However, each planning application is decided on its own merits. The first application only applied for a smaller facility. The Council considered this was suitable. It then considered the new application on its own merits and, again, decided that based on the information available, it was suitable.
44. I can see no evidence the Council did not properly consider its policy on the scale of the facility when approving the application in 2015.

Use of local roads

45. The Plan says there should be minimum use of local roads. However, I note that some use of local roads is often likely to be necessary.
46. The committee report shows the Council considered the number of HGV movements the extended capacity would generate. It imposed a condition on the site’s capacity that would limit this. It made reference to the existing provisions and the use of the wider industrial estate. It decided the number of HGV’s that would use the road on average was not significant. It also noted the highways authority did not raise any concerns about road safety.
47. This was the Council’s decision to make and is not something I can question, when there is no evidence of fault in how it considered the information available.
48. Mrs B refers to part of the Plan that says sites should be located within three kilometres of the lorry network. She says this site is further than three kilometres. However, I note this part of the Plan is commenting on the strategic sites identified in the Plan. The site Mrs B complains about is not one of the strategic sites. Therefore, this part of the Plan was not relevant to the planning application.

Complaint response

49. I do not find fault in how the Council responded to the complaint. The Council has responded at both stages of its complaint’s procedure. Both responses address each of the issues Mrs B raised and set out the Council’s findings clearly. I understand Mrs B was disappointed with the response. However, the Council did not uphold her complaint because it found no evidence of fault in how the committee considered the application. I have also found no evidence of fault in this respect.

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Final decision

50. The Council is not at fault in how it considered the planning application or responded to Mrs B’s concerns.

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Parts of the complaint that I did not investigate

51. I have not looked into whether the Council should release figures for the number of HGV’s entering and leaving the site. This information is third-party data relating to the company that owns the site, so I would not expect the Council to release this to Mrs B. If Mrs B considers the Council should release this in line with laws around freedom of information, then she would need to raise this with the Information Commissioner.
52. I have also not looked into concerns about HGV’s running on bank holidays. This is because the Council confirms it has not allowed operations on bank holidays to this site. However, it has allowed operations to another nearby site owned by the same company. Therefore, it is reasonable to conclude the HGV’s witnessed on bank holidays were accessing the other site.
53. The other site has a condition that says it should not run on bank holidays unless it has written consent from the Council. Therefore, the Council is entitled to give written consent for bank holiday operations. I have not looked into how it considered whether to do so as it is unlikely I could reach a finding and, in any case, it relates to a different site. It is therefore separate to the main concern I have investigated, which is the increased capacity at the first site.

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Investigator's decision on behalf of the Ombudsman