24 November 2015

Complaint reference:
14 017 931
Complaint against:
London Borough of Sutton

The Ombudsmans final decision

Summary: I have not found evidence the Council is at fault for not
enforcing conservation-related planning conditions on an industrial
site.

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.

What I have investigated

2.

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.

The Ombudsmans role and powers

3.

The Ombudsman investigates complaints of injustice caused by

maladministration and service failure. I have used the word fault to refer to these.
The Ombudsman cannot question whether a councils decision is right or wrong
simply because the complainant disagrees with it. She must consider whether
there was fault in the way the decision was reached. (Local Government Act 1974,
section 34(3))

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)

How I considered this complaint

6.

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
7.

8.

9.

10.

11.

12.

13.

14.

The Councils role in enforcing planning control

Councils may take enforcement action to remedy a breach of planning control, but
they are under no obligation to do so. In each case, councils have the discretion
to decide whether further action is expedient. Government guidance is that
councils should act proportionately when considering this. The law and guidance
do not assume councils should automatically enforce against every breach of
planning permission.
If a council takes planning enforcement action, the recipient has appeal rights,
which can overturn the Councils position. So councils will normally only take
enforcement action when they are confident they will have a strong position if
there is an appeal.
The site Mr B complains about
Mr B lives near a large site, parts of which are environmentally significant and
which it is intended will become part of a park and nature reserve with some
public access. Since the 1990s the site has had various planning permissions
including for mineral extraction, landfill and other waste-related work. The
permissions included conditions to restore parts of the site where mineral
extraction and waste-related activities have ended, with the restoration including
conservation management arrangements. Planning permissions have envisaged
phased development, with areas of the site being worked and then restored in
turn.
A planning permission in 1995 generated a conservation management plan. This
gave details of the intended restoration of different parts of the site to benefit
plants, wildlife and the environment. This 1995 permission envisaged waste work
ending in 2015 and restoration finishing 18 months later.
The waste-related work is farther advanced than the restoration. Some of this
seeming falling behind in restoration work may have happened before 2012. I
have not investigated events so long ago. I would not be able to decide now
whether there was any fault by the Council that contributed to restoration work not
being more advanced.
The position with planning permissions changed several times during the period
from 2012. I shall deal with each relevant period in turn.
January 2012 to June 2013
The conservation management plan approved under the 1995 planning
permission was in force during this time. However the Council also knew it was
considering a planning application to: have an anaerobic digester on the site;
extend the use of the site for waste to 2023; and replace the old conservation
management plan with a new conservation management scheme (CMS). The
Council reports it believed the new CMS would be an improvement on the
previous conservation management plan. The Council says it has no record of
complaints then about a failure to enforce the 1995 conservation management
plan.
In July 2012 the Council decided it would approve the digester application once a
legal agreement was finalised. That happened in June 2013, when the Council
issued the planning permission. Between July 2012 and June 2013 the Council
knew the 1995 planning permission and conservation management plan were still

Final decision

in force but it also knew the new planning permission was imminent and would
replace the conservation management plan.
15.

16.

17.

18.

19.

20.

21.

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.
22.

23.

24.

25.

26.

27.

I have not considered the Councils decision-making on the ERF planning

application. This was not part of Mr Bs complaint to the Council and the
Ombudsman. Also, that decision-making is too closely connected to what the
courts considered during the legal challenge for the Ombudsman to investigate it,
for the reasons given in paragraph 5.
The ERF planning permission included conditions requiring the applicant to give
the Council details of proposed restoration works before beginning work to build
the ERF. In December 2014 the applicant gave the Council these details.
Arguably the Council could have got these a few months sooner but I do not
believe the timing affected Mr B significantly, especially as for some of this period
the whole planning permission was subject to legal challenge. In mid-2015 the
Council was still considering these proposals and seeking some more information
from the applicant. While this might be frustrating for Mr B, such discussion of
detail between councils and applicants is not unusual with complex
developments. Once the Council discharges the relevant conditions, it will have
the option of enforcing any breach if it considers this expedient.
Information the applicant provided to discharge planning conditions attached to
the digester and ERF permissions suggested phase two of the restoration should
end by the end of 2013, phase three by the end of 2014 and phase 5 by the end
of 2015. Instead, restoration work is part-way through phase two. The Council
recognises this.
The Council accepts that from March 2014 it could have enforced against any
breach of the conservation-related conditions attached to the existing planning
permission for the digester. It argues there were two reasons it did not do this.
First, as paragraph 18 mentioned the Council only discharged key restorationrelated planning conditions attached to the digester permission in August 2014.
Until then, there could have been no breach of such conditions. It is satisfied the
applicants pace of work since then was reasonable for the time available. In
effect, the Council believed it would be difficult to show there was a real breach of
those conditions yet. This is a matter of judgement for the Council. I do not see
evidence of fault in how it reached this judgement. So I cannot criticise the
Councils position although Mr B and others can disagree with the Councils view.
Second, restoration work had reached partway through phase 2 in the
conservation management schemes attached to the planning permissions. The
details of phase two in the CMS attached to the digester permission differ from
those in phase two of the CMS attached to the ERF permission. The latter adds
some new grassland, which the Council considered desirable. The Council was
entitled to this view and therefore to judge that it would be better to wait and see if
the ERF development could go ahead than to enforce compliance with the earlier
CMS that would not include this element. The Council also took account of the
developers preference to build the ERF (if the legal challenge failed) rather than
the digester. It was entitled to consider it might be illogical and risky to try to
enforce compliance with a planning permission the developer did not want to
carry out when arguably similar or better conservation measures could come from
the ERF development it would prefer to carry out. I do not consider the Council
was at fault for taking this view.
Final decision

28.

29.

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.

Parts of the complaint that I did not investigate

31.

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