Summary: Mr X complained about the way the Council decided a planning application for a slurry lagoon near to houses in his village. We found there was no fault in the way the Council decided the planning application.

The complaint

1. Mr X complains the Council failed to properly consider a planning application for a slurry lagoon near to his home. He complained that:
• The Environmental Health (EH) team final comments were not available when officers recommended approval.
• The Environmental Health team’s initial response was rushed, but then their final comments were submitted very late giving the public little or no time to consider or comment on them.
• The Development Panel approved an additional condition without knowing precisely what it would say.
• Comments he submitted in response to the late EH response were not passed on to the Development Panel.
• The way the application was dealt with suggested pre-determination and an intention to favour the application.
• There was a failure to properly consider the negative health impacts from Slurry Lagoons and a failure to consult the Director of Public Health.
2. Mr X complains the failure to deal with the matter properly may result in negative health impacts to local residents.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered Mr X’s complaint and the information he provided. I asked the Council from information and considered documents available on its planning website. I watched the recording of the relevant Development Panel meeting.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Council Policy on participation at Development Panel meetings

7. Council policy states that an agenda will be published five working days in advance of a panel meeting. Attached to the agenda will be a thorough written report for each application to be considered. It states supplementary information may be tabled at the panel meeting at the discretion of the planning case officer.
8. The Council stated that case officers have to prepare reports around 12 working days in advance of a meeting. They will include all the information they have at that time. A ‘late list’ is circulated to Panel Members shortly before the meeting which reports any information received after the report was written.

What Happened

9. Mr X’s complaint concerns an application to construct a slurry lagoon at a farm which is positioned in a village.
10. The application was submitted in late 2020. An Environmental Health officer sent an initial response stating that the EH department had no comments or objections. The Council says the officer based this response on a brief site visit and concluded that the development would not create an additional impact in respect of odour. This took account of the existing farm activity and slurry lagoons in the village. The officer had noted there had been no odour complaints.
11. Amended details were received in January 2021. In response to concerns from local residents the EH manager reviewed the situation and requested an odour assessment from the applicant. The applicant submitted an odour report in February 2021. The Council consulted EH and local residents on the revised application and information submitted.
12. Because of the volume of local objections, the application was called in for a decision by the Development Panel. The Council stated that planning officers also questioned and sought verification from EH colleagues.
13. An EH officer met Mr X and visited the site and surrounding area. The decision was made to obtain an external, expert peer review of the applicant’s odour assessment. The scope of this was decided in July, the peer review was received in mid-August.
14. The assessment found that in general the method used by the applicant’s odour assessment was appropriate. However, some further information was needed to assess the finding that the lagoon would be categorised as a low source of odour. It also noted, while the annual volume of slurry to be spread remained the same, the intention was to spread more in summer months. The peer review found this point had not been addressed adequately.
15. As a result, the Council requested more information from the applicant. When this was received it was sent to the external peer reviewer for further comment. Further Peer review comments were received in early September. In summary the peer reviewer concluded the odour potential from the lagoon was low and that there was likely to be a reduction in odour impacts at nearby residential properties compared to the position with the existing slurry tower.
16. The application was scheduled for consideration at a panel meeting on 28 September 2021. The deadline for officers to submit their report for the meeting was 10 September 2021. The agenda was published on or around 22 September 2021.
17. The case officer’s report submitted on 10 September made reference to concerns from residents and the parish council about the proximity of the slurry lagoon to houses in the village and the impact to resident’s amenity. The report noted there were concerns about possible overspill contaminating land and about odours.
18. At the time of the original case officer’s report, it stated initial responses from EH officers had raised no objection, but an odour assessment had since been requested. It stated revised comments from EH were still pending at that time about the additional information which had been subject to peer review.
19. On 27 September, the day before the panel meeting, the EH Manager provided updated comments on the proposals and the peer assessment review. The officer set out their view that they considered the proposed slurry lagoon was acceptable subject to conditions which required an odour management plan to be submitted and agreed by the Council. They commented on the factors they had taken into account.
20. A late list/report was put to the development panel on 27 September. This included comments Mr X made on 24 and 27 September. It also detailed the late comments from the EH Manager and comments made by another objector.
21. A site visit took place by Panel members on the morning of the meeting. At the meeting the panel heard from the planning case officer. In addition to setting out her view on the proposal, the case officer stated an odour management plan would be added as a further condition. The panel also heard from several objectors and supporters of the application. Mr X spoke at the development panel meeting, explaining his objections. The EH Manager answered questions and explained her view and the approach to odour management at the meeting.
22. Councillors asked numerous questions during the debate and voted to approve the application subject to conditions.

Was there fault by the Council

23. The case officer’s report considered the application appropriately and explained the key issues and comments received. While objectors may not have agreed with the initial view of EH officers, there is no evidence this view amounted to predetermination of the application. EH initially considered no objection should be made, but is evident that EH officers reviewed their position in view of the comments and objections received and the Council sought more information. They obtained an independent peer review of the impact, alongside their own assessment of the application. While initially EH made no objection, there is no evidence that the application was later rushed. I recognise that the revised EH comments were received very late in the process. This is not good practice, particularly where there was significant interest and objection, which focussed on the EH issues. However, the Council policies allow for late comments to be reported to the panel to be considered. While it would have been preferable for the comments to have been made available sooner, I do not consider this represents fault in the process. I found the way in which EH officers assessed the proposals did not represent fault.
24. Although I recognise that Mr X would have liked to see a further consultation with Public Health officers, this was not a requirement for this application. It was not fault that the Council did not do this. The issues of concern were considered by EH officers and via peer review.
25. Mr X complained the committee approved the application without knowing the precise details of a condition. This related to odour management. A condition was proposed by EH officers. The precise wording of the odour management was not stated in the case officer’s original report. However, this was not fault by the Council. The basis of the condition was set out by the EH officer in their comments of 27 September, which were reported to the Development Panel in the late report. The final condition added that there was a need for a review mechanism. Members were advised that the condition would be added and it was a point clarified when voting. It is not uncommon for decisions to be approved, subject to appropriate conditions being added or amended by officers. In this case, the basis of the condition to be added was clear.
26. The case officer’s report set out the comments made by objectors appropriately, the late report added further comments made by Mr X. The Council stated some additional comments were received after the meeting. These were not included because they were not received by the time the meeting took place. This was not fault. I also note that objectors, including Mr X had the opportunity to make comments and address the panel. It is evident that the key issues of concern were considered by officers and discussed during the presentations and debate.
27. I found, while it would have been helpful for EH revised comments to be available earlier, there was no fault in the way the Council arrived at its decision to approve the planning application.

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Final decision

28. There was no fault by the Council. I have completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman