“The response (to my previous question on the subject) from Cllr. Mrs. Spink as Planning Portfolio Holder included the statement that she considered that the present status of the metal conveyor belt was 'unlawful development'.
1. What steps are being taken to bring this into a 'lawful' status?
2. Is it possible at this stage to place an enforcement order on this development?
3. Can I assume that had an enforcement order been placed on the conveyor belt development when it was first drawn to the attention of the Planning or Environmental Health Services; a normal planning application would have had to be submitted, or that legal proceedings could have been taken against TKA?
“If such a planning application had been made, can I assume that it would have involved
1. notification and consultation with the Parish Council, the residents, and the local member?
2. The PC and the local member and the residents having the opportunity to bring to the committee's attention the extent of the local problems?
3. A decision would have been made by the Planning Committee, taking into account those objections and any recommendations of the planning officers?
4. A decision, which could have included conditions on structure and materials; sighting and orientation; as well as restrictions on the timing of the use of that facility?
5. TKA having the right to have taken any decision to appeal?
“Failing to serve an enforcement order on TKA at the appropriate time prevented those parties from having an input into the decision.
· Please can you confirm the above?
· What measures are in place to ensure that such a failure does not occur again?
· Can we offer the residents any hope of improved conditions related to the noise they are subject to at present?”
Minutes:
Councillor RB Martlew asked the Planning and Economic Development Portfolio Holder the following question:
“The response (to my previous question on the subject) from Cllr. Mrs. Spink as Planning Portfolio Holder included the statement that she considered that the present status of the metal conveyor belt was 'unlawful development'.
1. What steps are being taken to bring this into a 'lawful' status?
2. Is it possible at this stage to place an enforcement order on this development?
3. Can I assume that had an enforcement order been placed on the conveyor belt development when it was first drawn to the attention of the Planning or Environmental Health Services; a normal planning application would have had to be submitted, or that legal proceedings could have been taken against TKA?
“If such a planning application had been made, can I assume that it would have involved
1. Notification and consultation with the Parish Council, the residents, and the local member?
2. The PC and the local member and the residents having the opportunity to bring to the committee's attention the extent of the local problems?
3. A decision would have been made by the Planning Committee, taking into account those objections and any recommendations of the planning officers?
4. A decision, which could have included conditions on structure and materials; sighting and orientation; as well as restrictions on the timing of the use of that facility?
5. TKA having the right to have taken any decision to appeal?
“Failing to serve an enforcement order on TKA at the appropriate time prevented those parties from having aninput into the decision.
· Please can you confirm the above?
· What measures are in place to ensure that such a failure does not occur again?
· Can we offer the residents any hope of improved conditions related to the noise they are subject to at present?”
Councillor Dr DR Bard, Planning and Economic Development Portfolio Holder, referred to the following letter by the Corporate Manager (Planning and Sustainable Communities) which had been received by Councillor Martlew and would be circulated to all Members.
“I apologise for the delay in replying formally to your further questions of the 6th February 2007, to Cllr Bard.
First, can I just update you with the current situation regarding the second (LDC) Lawful Development Certificate application for the scrap metal conveyor and the planning application for its hood. The LDC has recently been issued and the planning permission can now be granted for the hood. The Area Environmental Health Officer, Brian Heffernan, will be writing to the complainants in the next few days to update them on the progress since the agreement between the Company and this Council was agreed last year, and he will copy you in. It may be that more evening monitoring will be required in the summer months to assess the worst-case conditions for the complainants. Once planning permission is granted for the conveyor housing he will encourage the company to carry out the modification works.
I know you remain concerned that the decision was made at an early stage to tackle the noise problems at the site through the noise abatement legislation rather than enforcement action, but as I have already said this is normally a more effective way of dealing with industrial noise issues when statutory nuisance can be proven. The process has taken much longer than I would have wished, but I still consider trying to work with the Company as much as possible on the broad range of noise issues affecting local residents rather than enforcement action, with its built in rights of appeal and consequent delays was the correct decision.
Picking up on the detailed points you raise:
1. A lawful Development Certificate has now been issued i.e. the conveyor now has “lawful status”.
2. It is no longer appropriate to serve an enforcement notice on the conveyor, an LDC having been issued.
3. If an enforcement notice had been served in the early stages of the complaint, it would almost certainly have been appealed by the Company. In determining the appeal the Inspector would have considered the “deemed application” for the conveyor and would either have upheld the notice or granted deemed planning permission. The Company could have submitted a separate planning application but nothing would have been gained by so doing. If the enforcement notice had been upheld by the Inspector and the company failed to comply with its requirements (it is often the case that Inspectors modify a notice on appeal, particularly the period of compliance) legal proceedings could have been instigated by the Council.
4. If Enforcement action had been authorised by the Planning Committee, the agenda item would have set out the nature of the complaint and comments received from the Parish Council and the local Member. Members could have asked the enforcement notice to seek the removal of the conveyor or preferred a “positive” enforcement notice requiring re-siting and reorientation, hours of use etc. Either way, the likelihood is the Company would have appealed.
5. Although the enforcement route would have enabled the local community to have an input into the decision, ultimately it is highly likely the decision itself concerning the fate of the conveyor would have rested with a DOE Inspector. The Environmental Health Officer has been fully aware of local concerns in his negotiations with the Company, visiting local residents properties and monitoring the site.
6. Despite the unfortunate delays in resolving the matter, I consider the noise abatement legislation was the correct route to follow in addressing complaints which specifically related to noise disturbance. It was essential to attempt to establish a dialogue with the Company to look in detail at their entire operation.
7. As I have said the Environmental Health Officer is continuing to monitor the site and is in discussions with the company in an attempt to reduce noise disturbance to local residents. More details will be forthcoming shortly in his letter to local complainants.
To conclude, your officers have to make difficult decisions on a daily basis as to where our resources are used. In this case I remain of the opinion that the Environmental Health Legislation was the correct approach, and that a planning enforcement notice would have not achieved anything extra or quicker.”
Councillor Martlew thanked Dr Bard for his response which had provided an explanation of the situation. He reiterated his concerns that the matter had not been dealt with properly, that there had been a lack of consultation with the Local Ward member, parish council and residents, and that it was important that lessons were learnt to ensure that such a situation was not repeated.
Councillor Dr Bard accepted Councillor Martlew’s comments, advising that lessons would be learnt for the future and that, in hindsight, the issue of enforcement action should have been considered by the Planning Committee in this case.