Summary: the complainant, Mr X, complained the Council failed to properly consider objections to a planning application to extend part of a waste processing site. Mr X further complained it failed to use its powers to control noise and dust nuisance. The Council said it followed correct procedures and used its powers where necessary. It did not refer applications to councillors for a decision because the applications did not meet the criteria for a referral. We found the Council acted with fault and it has agreed to our recommended remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to properly consider his objections to a planning application to extend a building on the waste processing site near his home. Mr X says the Council also failed to properly exercise its discretionary planning enforcement powers and environmental protection powers to ensure the site operator complied with planning conditions and prevent statutory nuisances.
2. The failings Mr X says, resulted in avoidable noise and dust nuisance for him and his neighbours. This, he says, has become intolerable and has a harmful impact on their health and well-being.
3. Mr X wants the Council to recognise the impact on his home, family, and other residents and to act to prevent the nuisances from recurring or continuing.

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The Ombudsman’s role and powers

4. 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)
5. If 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

6. In considering this complaint I have:
• Contacted Mr X and read through the information sent with his complaint and during the investigation;
• Put enquiries to the Council and reviewed its responses.
• Researched all relevant law, guidance, and policy;
7. I shared with Mr X and the Council my draft decision and reflected on their comments before reaching this my final decision.

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What I found

The law and guidance

Planning Permission

8. Developers need planning permission to develop land (including its material change of use). Councils may grant planning permission subject to conditions about the development and use of land.
9. Councils must give publicity to planning applications.  The publicity needed depends on the nature of the development. Council must publish all applications on the council’s website.
10. Councils must decide planning applications by applying the policies in the development plan unless material considerations suggest otherwise.
11. The National Planning Policy Framework is a material consideration in deciding applications.
12. Material considerations concern the use and development of land in the public interest. They do not include private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
13. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless founded on valid material planning reasons.
14. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight given to any material consideration in deciding a planning application.

Planning Enforcement

15. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
16. Section 171A of the Town and Country Planning Act 1990 (the Act) defines a breach of planning control as:
• The carrying out of development without the necessary planning permission; or
• Failing to comply with any condition or limit set out in the planning permission.
17. Where the breach involves carrying out development without permission, the Council may serve an Enforcement Notice if it is expedient to do so under s.172 of the Act. It is for the Council to decide whether it is expedient to issue a Notice.
18. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A.

Statutory nuisance and Environmental Permits

19. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances.
20. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
21. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
22. Once officers have completed their evidence gathering, they assess the evidence. They consider the timing, duration, and intensity of the alleged nuisance. The officers then use their professional judgement to decide whether a statutory nuisance exists.
23. If satisfied a statutory nuisance exists, has happened, or will happen in the future, the Council must serve an abatement notice. If the nuisance is noise from buildings used for a business, the Council may delay service of an abatement notice while it addresses the problem informally. An abatement notice tells the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
24. In the government guidance “Statutory nuisances: how councils deal with complaints” (April 2015) the guidance says that where environmental permits granted by the Environment Agency (EA) control noise, smell, and dust nuisances then:

“Councils need to work closely with the EA to make sure that people are not penalised twice for the same activity. If a facility has an environmental permit, councils must get the Secretary of State’s permission before prosecuting for breach of an abatement notice”.

What happened

25. Mr X lives near to a waste recycling plant (the Plant). The Plant has an environment permit granted by the Environment Agency (EA). Mr X says the Council has failed to use its powers to stop dust, odour and noise nuisance reaching unacceptable levels. The resulting disturbance has caused distress to residents including Mr X.
26. The Council has two sets of powers to control the site: environmental protection and planning. Separate legal frameworks govern these powers.
27. Where the EA grants a permit for a site it takes the lead on environmental protection. The Council must still investigate complaints but cannot prosecute a notice without the Secretary of State’s consent. In response to my enquires, the Council says its officers visited the site in response to complaints of noise and dust nuisance. They witnessed a dust cloud but could not say it was only from the Plant. In the professional officers’ view they do not have enough evidence to cross the threshold of a statutory nuisance.
28. Mr X says one way of stopping and preventing further nuisance is to properly consider refusing any further planning permissions.
29. In June 2011, the Council granted planning permission to use land for a waste transfer station and construction of buildings at the site. In conditions attached to the planning permission the developer must present to the Council a dust action plan. The Council approved such a plan in April 2012.
30. Mr X has complained to the Council about the impact of the Plant on him and his neighbours from the start of the business. In 2018 Mr X complained of working in breach of the planning condition forbidding working on Good Friday, Bank Holidays and Sundays.
31. In response the Council issued a Planning Contravention Notice asking for an explanation from the site operator. The Plant’s operators explained it opened due to the public demand for skip hire. The operator said they directed drivers to ensure lorries and trucks were ‘sheeted’ to prevent dust nuisance. The Council issued a letter warning the site operators that any further evidence of a breach of the conditions would result in it serving a Breach of Condition Notice.
32. The planning conditions the Council says only apply to actions within the site. The Council consulted the EA about the dust arising from the lack of sheeting on vehicles. The EA said it’s Permit also only limits what happens within the site, not outside on the approach to the Plant.

Planning Permissions

33. In June 2018, the developer presented an application for permission to extend the waste transfer station. The Council granted planning permission in May 2019 with conditions attached.
34. The Council says it gave due publicity to the planning application in August 2018 through the press, and site notices placed in seven different locations. These reflected the areas from where the Council had previously received complaints.
35. The Council received 38 letters objecting to the application. Residents cited historic problems with dust, including silicone dust, noise, and vehicle movements. They referred to the impact on the amenity of the area. They set out concerns about pollution and impact on health and well-being. Residents complained of the noise from trucks arriving and leaving often before the site opened.
36. The EA, highways authority and Network Rail offered no objections to the proposal. The local flood risk management team recommended imposing a planning condition for approval of a drainage scheme.
37. Mr X and other residents believe the Planning Committee known as the Plans Panel should consider planning applications about the Plant. They believe councillors, in contrast to officers, would refuse the applications or place further conditions on any planning permissions granted.
38. Councillors could not overturn the principle that this site may be used as a waste transfer station. The permissions granted in 2011 settled that issue. However, they could refuse permission to extend or intensify the use if they had material planning reasons to support that decision.
39. Under the Council’s Constitution councillors may ask the Council to refer an application to the Plans Panel for a decision if it meets set criteria. To reach the Plans Panel its Chair must agree the proposal is “sensitive, controversial, or likely to cause a significant impact on the local community.”
40. The Council says it decided this application under delegated powers because the Plans Panel Chair decided not to refer it for a decision by the Plans Panel. In the Chair’s view the proposal was not sensitive, controversial, or likely to have significant impact on the local community.
41. The Council says it makes 98% of planning decisions by delegated powers in line with current national best practice.
42. In November 2020 the Council received a planning application for retrospective permission for erecting a canopy to the main waste transfer building. The Council approved the application on 7 January 2021.
43. Mr X says he and other residents have complained about the impact of the Plant for years. He says despite that, the same issues arise over noise, dust pollution, and working hours. Mr X says this means he is continually complaining to the Council. In an officer briefing note to councillors issued in August 2019, officers set out how the Council had responded to complaints over the previous two years. An unannounced visit took place and officers found fault with storage of inert material. Officers believed the extension to the building would address that. The briefing note explains the EA has overall regulatory powers and that due to the Plant’s location it cannot say all dust issues arise from just the Plant. However, both the Council and EA believe it best practice to carry out ‘polluting’ work within a building. This provides in their view a more effective way of controlling emissions and better protects the public.
44. Since complaining to the Ombudsman Mr X and his neighbours say they have continued to experience nuisance and breaches of planning controls.

Analysis – was there fault causing injustice?

45. My role is to decide if the Council decided the planning applications and whether to exercise its enforcement powers without fault. It is not to decide the merits of the planning decisions or say when the Council should use its enforcement powers. If I find fault, I must consider the impact of that fault and say what the Council should do to address it.
46. The Council granted planning permission for this industrial use in 2011. In planning law that permission settled the authorised use for the site. The Council may still refuse applications seeking to extend that use, add buildings etc. or grant them subject to conditions. However, the Council cannot now overturn that original decision, or refuse applications because of this intended use.
47. The Council gave due publicity to the planning applications in 2018 and 2020. That enabled Mr X and other residents to present objections. Councillors did not exercise their right to ask for referral of the decision to the Plans Panel. Officers say they considered the impact on residents and their concerns when deciding each application. The Plans Panel Chair decided the application did not meet the criteria for referral. A local councillor objected to the 2020 application but did not ask for a referral. Had they done so given the Plans Panel Chair’s view it is unlikely he would have referred the application.
48. In deciding planning applications councils must consider all material planning considerations. The number of objections is not relevant, it is the grounds for those objections which the Council must consider. When exercising their professional judgement and delegated powers officers should consider the impact on neighbours regardless of whether the Council has received objections. Officers have consistently granted planning permission having considered the strength of and reasons for objections. I cannot decide the merits of those applications. The Council has followed due planning procedures when deciding those applications, however in one point I find the Council at fault.
49. The Council does not keep a written record available to the public showing the reasons for the Chair’s decision not to refer an application to the Plans Panel. The Chair’s decision is a significant decision in the exercise of the Council’s planning powers. To the layman a site causing this volume of complaints suggests it is a controversial or sensitive site. Where an application concerns a site known to attract complaints it is important the public understands why the Chair took their decision. Without that explanation councillors, Mr X, residents, and the public have no explanation setting out why the Chair considered this not to be a controversial or sensitive site. I find this a fault in the procedure.
50. This fault led to confusion about what the Council counts as a controversial or sensitive site likely to have a significant impact on residents.
51. I cannot say and we may never know if the Plans Panel would grant or refuse these applications. Councillors may take the same view of the planning merits as the planning officers and Chair and grant permission or take a different view and refuse.
52. I have no doubt Mr X and other residents experience disturbance from the Plant. What I cannot say is whether that amounts to a statutory nuisance. The Council’s environmental protection team have considered the dust and noise nuisance complaints liaising with the lead authority, the EA. The EA has not prosecuted for alleged breaches of the permit and the Council would need Secretary of State approval to prosecute any notice it issues. How the incidents of noise and dust fail to meet the threshold of a statutory nuisance is unfathomable to Mr X and other residents. However, when reaching their professional judgement officers had before them all relevant information. Therefore, I find the officers reached their view without fault.
53. The EA is lead authority but that should not result in the Council failing to consider whether a statutory nuisance has occurred and following its usual statutory nuisance procedures. I find the Council has followed its usual statutory nuisance procedures and therefore has acted without fault.

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Agreed action

54. To address the injustice arising the Council has agreed to my recommendations. It will write within four weeks of this my final decision to Mr X with an apology for the absence of any record of the Chair’s reasons for not exercising their discretion to forward the application to the Plans Panel. The Council also agreed to within three months of this final decision to include in delegation reports whether the Chair has exercised their discretion not to refer and application and record their reasons. The Council further agrees to provide officers with training to ensure consistency in recording whether an application is controversial, sensitive, or likely to have a significant impact on residents.

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Final decision

55. In completing my investigation, I find the Council acted with fault causing injustice for which the Council has agreed a remedy.

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Investigator's decision on behalf of the Ombudsman