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Complaint reference:
14 017 931
Complaint against:
London Borough of Sutton
The complaint
1.
The complainant, whom I shall refer to as Mr B, complains the Council has failed
to enforce planning conditions regarding conservation management at a large
site. As a result, Mr B says the sites ecological condition has deteriorated and he
has suffered a loss of amenity as a local resident with an interest in ecological
matters, as he had intended to visit the site and benefit from local ecological
improvements.
I sought to investigate events since early 2012. The final section of this statement
contains my reasons for not investigating the rest of the complaint.
4.
The Ombudsman cannot investigate late complaints unless she decides there are
good reasons. Late complaints are when someone takes more than 12 months to
complain to the Ombudsman about something a council has done. (Local
Government Act 1974, sections 26B and 34D)
5.
The Ombudsman cannot investigate a complaint about the start of court action or
what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3)
I considered the information Mr B provided and discussed the complaint with him.
I made written enquiries of the council and considered its response. I also
obtained some information about the site and planning applications from the
Councils website. I also shared my draft decision with Mr B and considered his
comments on it.
What I found
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Final decision
in force but it also knew the new planning permission was imminent and would
replace the conservation management plan.
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The Council had concerns about the progress of restoration work but believed
enforcement would be difficult because of doubt about which conservation
management plan or scheme to enforce. My understanding suggests the Council
might well have believed that seeking to enforce the 1995 conservation
management plan would not be expedient because, by the time any enforcement
action was underway, a new planning permission might well be in place. That
would make enforcement of the earlier conservation management plan
redundant. The Council would also have been entitled to its view that the
proposed CMS would be an improvement on the older conservation management
plan. That would also have been an argument against enforcing the older
position.
However the main point here is that I cannot reasonably expect to reach a clear
enough view now about whether the Council properly decided several years ago
whether there were breaches of the 1995 planning permission and, if so, whether
to take any enforcement action. I do not consider further investigation of events
so far back is likely to be fruitful. So there is not enough evidence of fault in the
lack of enforcement action then. I have not pursued events in this period further.
June 2013 to March 2014
The planning permission for the digester, which included a new conservation
management scheme, was in force in this period. However, since July 2012 the
Council had also been considering an application for an energy recovery facility
(ERF) on the site instead of the digester. This proposal included ending landfill
earlier than 2023 and ending restoration work by 2023. The Council knew the
applicant would prefer to have the ERF than the digester. The application for the
ERF included a new CMS that differed in some details from the CMS attached to
the digester scheme.
As noted above, the Council had concerns about the pace of restoration work.
The planning permission for the digester contained conditions about phased
working and restoration of the site. After granting permission, the Council needed
details to discharge some of those conditions. It took some time to obtain and
consider the details. Some of the conditions covering restoration were only
approved in August 2014. This means those conditions were not enforceable
between June 2013 and March 2014. It is not unusual for discharging conditions
to take some time for complex applications. I do not see fault by the Council here
that is likely to have significantly affected the position in terms of the contents of
the plans for future restoration and maintenance.
Also, there was no fault in the Council being mindful the applicant wanted to build
the ERF rather than the digester and that the ERF application had some different
conservation-related measures to the digester one. There was no fault in the
Council having regard to the emerging possible change in the planning situation.
The evidence does not suggest there was any fault in this period but for which the
Council would have been likely to take planning enforcement action.
Since March 2014
The Council approved the ERF application in March 2014. Some objectors then
took court action seeking to overturn the planning permission. The High Court
dismissed that action in November 2014. An attempt to appeal against that
decision ended unsuccessfully in late April 2015. During the legal action, the
Final decision
applicant did not start work on the ERF or the connected CMS, arguing that doing
so would be too risky while there was a chance the court action would overturn
the planning permission.
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For the reasons given, I do not fault the Councils lack of enforcement action in
this period.
Overall lack of enforcement action to date
Overall, I have not found fault by the Council causing a significant injustice to Mr
B. During the period I investigated, the main factor was that the situation in
planning terms was fluid. There was no fault in the Council having regard to that.
However, to avoid the risk of future justified complaints, the Council should now
seek to discharge the relevant conditions without delay. It should also seek to
avoid any slippage in monitoring progress and in deciding what to do about any
alleged or actual breaches in future.
Final decision
30.
I do not consider the Councils lack of enforcement action was undermined by any
fault. So I have ended my investigation.
Planning applications related to the site date back around 20 years. I investigated
events since 2012 because Mr B was awaiting the result of court proceedings
concerning some of those events before contacting the Ombudsman and
because I considered there was a realistic prospect of reach a clear view about
recent events. I noted some events before 2012 as background information but I
did not investigate them. The restriction described in paragraph 5 applies to those
events. I consider Mr B could reasonably have complained sooner if he wanted
the Ombudsman to investigate them. Additionally, it would be very difficult to
reach a clear enough view now about events so long ago. For these reasons I
have not investigated events before 2012.
Investigators decision on behalf of the Ombudsman
Final decision