Summary: Mr C complained about the Council’s planning and enforcement decisions relating to a quarry site and how the presence of protected wildlife had been monitored. He said, as a result, protected wildlife and habitats had been damaged. We found no fault in the process the Council followed to reach its view it was not expedient to take enforcement action against the quarry operator. We cannot therefore criticise the merits of its decision. Other parts of Mr C’s complaint were outside our jurisdiction, or late, and he has since brought these to the attention of the appropriate bodies.

The complaint

1. The complainant, whom I shall refer to as Mr C, complained the Council failed:
• to monitor protected wildlife at a quarry site as required under condition of its planning permission in 2011;
• its duty and legal responsibility to protect wildlife within the quarry site, including after he shared evidence of the presence of a protected species in 2021; and
• to provide information relating to the quarry and surveys completed when he requested it.
2. As a result, Mr C said protected wildlife and its habitats had been damaged and obstructed. He also said he had been impacted as the protected species acts as a natural pest control for his business.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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.
7. 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

8. As part of my investigation, I have:
• considered Mr C’s complaint and the Council’s responses;
• discussed the complaint with Mr C and considered the information he provided; and
• considered the planning documents, law and guidance relevant to the complaint.
9. Mr C 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

Planning law and guidance

10. Planning permission may be granted by a planning authority subject to conditions relating to the development and use of land. Where necessary for approval of a permission, a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application.
11. A planning authority can take enforcement action if they find planning rules have been breached.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, planning authorities should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages planning authorities to resolve issues through negotiation and dialogue with developers.
13. Although planning enforcement is discretionary, we expect planning authorities to respond to reports of planning breaches, investigate and decide whether or not to take enforcement action without delay.
14. Mineral planning issues are dealt with by county councils, unitary authorities, and National Parks, as the mineral planning authority for issues within their area.

What happened

15. I have set out a summary of the key events below. It is not meant to show everything that happened. We are only considering Mr C’s complaint about the Council’s decision in 2021, but I have set out the background by way of context.
16. The Council, as the mineral planning authority, granted planning permission for the extraction of sand and gravel at a quarry next to Mr C’s property in 2011, which included the restoration works of the site when the operations were completed.
17. The planning permission included a condition which said no development should commence until a programme for the ecological management of the site had been submitted and approved by the Council. The programme should provide measures and techniques to safeguard protected species, breeding birds and their habitats during the period of the development to include additional survey works.
18. A reason for the condition was in the interest of the ecology of the area and to conform with policies in the Council’s Local Plan.
19. The programme approved by the Council set out the mineral operator should conduct annual surveys of protected wildlife.
20. Mr C has made several complaints to the Council about the quarry site. He has brought seven of his complaint to the Ombudsman.
21. In Spring 2021 Mr C commissioned a technical analysis report to determine if Great Crested Newts (GCN) were present on his land. The report considered the traces of DNA in his ponds and confirmed the presence of GCN’s on his land.

Mr C’s complaint

22. Mr C shared the finding of the report with the Council. He complained it had:
• failed to follow Natural England Guidelines for the quarry, and Mr C’s land, when it considered protected species at the quarry;
• failed to monitor GCN’s at the quarry site as set out in the approved Ecological Management Plan; and
• failed to provide monitoring information he had previously asked for.
23. In response the Council did not uphold Mr C’s complaint. It said:
• the original planning application had an environmental statement with various surveys which found no evidence of GCN’s in the area. The quarry operator was therefore not required to obtain a GCN licence from Natural England before commencing works;
• it had considered Mr C’s comments on the 2011 planning applications for the quarry site relating to the absence of GCN information in his ponds. It had sought advice from Natural England which did not request further planning conditions. The advice received was considered by its Planning Committee;
• the approved Ecological Management Plan required the quarry operator to undertake annual surveys of GCN’s, which had not been done. However, as the previous surveys had failed to detect a GCN presence, it found it unlikely to suddenly be a large increase in the GCN presence on the site. It said it would therefore not have been expedient for the Council to take enforcement action;
• the site was now in the restoration phase, and it had sought advice from its Ecologist if further surveys, or measures, would be needed before the restoration works; and
• it accepted there were some evidence of GCN’s on the site but the full population was unknown.
24. In Autumn 2021, Mr C obtained a GCN licence from Natural England. This allows him to do works on his land which may impact the GCN.
25. Mr C was not satisfied with the Council’s response. He said it had failed to ensure no damage or destruction of GCN breeding or resting places had occurred. He told the Council it should have done more to ensure the Quarry operator completed annual GCN surveys and obtained a licence when it became clear GCN’s were present.
26. The Council has not changed its view. It found it had taken account of protected species at the planning application stage in 2011. As the planning permission had been granted, it said there was no requirement on the Council to require further surveys throughout the life of the development, including the restoration of the site.
27. Mr C has since reported the quarry operator and the Council’s handling of the site to Natural England.
28. Natural England had told Mr C it has reported matter to the police for its consideration.

Analysis

29. Mr C complaint includes the Council’s handling of the planning permission for the quarry site since 2011. His complaint is therefore late.
30. We have also previously investigated Mr C’s concerns relating to the planning permissions for the quarry site. I have therefore not found it appropriate to exercise my discretion to consider his complaint before 2021. I will therefore only consider his complaint relating to GCN’s from when this was brought to the Council’s attention in 2021.

Annual surveys at the quarry site

31. The approved Ecological Management Plan required the quarry operator to complete annual GCN surveys during the life of the development. This would include surveys from 2021 onwards.
32. The Council has agreed the quarry operator failed to do so, and it did not receive annual GCN surveys. The Council told Mr C it did not consider it expedient to take any enforcement action to require the operator to provide annual survey of protected wildlife species. It based its view on the previous surveys which had been completed and considered as part of its planning decision in 2011, which showed an absence of GCN’s in the area.
33. The Council was not required to take enforcement action. It had discretion to decide whether to do so. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We can only decide whether there was fault in the way it was reached.
34. Based on the evidence I have seen, the Council considered the surveys and information available to it when it decided it was not expedient to take enforcement action against the quarry operator for the failure to complete annual surveys. It reached a view it was entitled to make; I cannot therefore criticise the merits of its decision.
35. I understand Mr C believes the Council had a duty to ensure mitigations were in place to limit the impact the activities at the quarry site had on GCN’s and their habitat. However, I have not found fault in how it considered Mr C’s planning control concerns.

Licencing and unlawful impact on GCN’s

36. When Mr C had a survey completed on his land, which showed the presence of GCN’s in his ponds in 2021, he said there was a requirement on the quarry operator to also apply for a licence from Natural England. If such license was subsequently granted, the operator would normally be required to make payment to mitigate the impact its activities and restoration works have on the GCN’s in the area.
37. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
38. Whether the quarry operator, or the Council, should have obtained a licence and put in place mitigations to limit the restoration works impact on GCN’s in 2021, is not for the Ombudsman to consider. This is because Natural England is the body responsible for considering licencing to mitigate and compensate for protected species and their habitats. Any potential breaches of wildlife protection laws are a criminal matter, which should be brought to the attention of the police.
39. Mr C has correctly reported his concerns to Natural England, and it has reported the quarry operator to the police. This was the appropriate next step to determine if the quarry operator, or the Council, has failed in their duties to protect GCN’s at the quarry site.

Sharing of information with Mr C

40. Mr C also complained the Council failed to provide information he had requested regarding the quarry site and surveys.
41. I understand the reason the information was not shared with Mr C, was because no surveys had been completed by the quarry operator and received by the Council. However, if Mr C remains unhappy about the Council’s information sharing with him, he can bring his concerns to the Information Commissioner (ICO), who considers such disputes.

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Final decision

42. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman