Report. on an investigation into complaint no 05/B/00785 against Isle of Wight Council

Transcription

1 Report on an investigation into complaint no against Isle of Wight Council 30 March 2006

2 The Oaks No 2, Westwood Way, Westwood Business Park, Coventry CV4 8JB

3 Investigation into complaint no against Isle of Wight Council Table of Contents Page Report summary 1 Introduction 3 Legal and administrative background 3 Investigation 5 Conclusions 16 The need for an environmental impact assessment 16 Consideration of the planning applications 16 The June 2003 decision notice to the applicant 17 Enforcement action 17 Other issues 18 Finding 18 Key to names used Mr and Mrs Knight Officer A Officer B Officer C Officer D the complainants a former senior development control officer a senior environmental health officer a senior enforcement officer a legal officer

4 Report summary Enforcement The Council received a planning application in March 2003 for continued use of land for motorcross and associated engineering works. Extensive earthworks were then carried out. The complainants say that they are affected by noise from the site. The complainants have a number of criticisms about the way the council considered this application. The Council sought legal advice on the validity of the decision notice and was advised to consider the application afresh. On 12 August 2003 the Council resolved that temporary planning consent should be issued. Council officers admitted that there were some shortcomings in the way that the previous application was dealt with but claim that they did not impact on the outcome. Another local resident sought Judicial Review of both decisions. The Council resolved not to take enforcement action regarding an event held in May A Consent Order which quashed both planning permissions was signed on 9 June The site was used for two events in September and October Enforcement action was authorised on 26 October 2004 when it became obvious that the promoter had not commissioned the preparation of an Environmental Statement to accompany a planning application for the use of the land on a permanent basis. However, the Council agreed to an event taking place in August 2005 which was controlled by a section 106 agreement. Finding Maladministration but no injustice. 1

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6 Introduction 1. Mr and Mrs Knight complain that there were failings in the way the Council dealt with planning matters relating to land near their home. They consider that there has been significant maladministration by the Council since about Their complaint concerns a motocross track, which they say disfigures the local landscape, and has been a source of noise pollution for those living nearby. They say that they have been subjected to intrusive noise from the track, the landscape in the neighbourhood has been spoilt by the presence of the track and the value of their property has been diminished by its proximity to the track. Mr and Mrs Knight are not seeking financial compensation but they would like their injustice to be acknowledged. They are concerned that activities may increase in the future. Mr and Mrs Knight say that the Council delayed taking enforcement action even though no planning permission existed and allowed a large race meeting to go ahead in September 2004 in breach of planning control. 2. One of the Commission s officers has examined the Council s files, interviewed officers of the Council and visited the complainants. 3. I invited the complainants and the Council to comment on the draft of this report. I have taken account of their comments in preparing the final text and reaching my conclusions. 4. For legal reasons, the names used in this report are not the real names of the people concerned. 1 Legal and administrative background 5. Department of the Environment Circular 11/95 states that temporary planning permission will normally only be appropriate either where the applicant proposes temporary development or when a trial run is needed in order to assess the effect of the development on the area. 6. In its comments on the factual part of my report in draft, the Council said that it has express objectives within its Unitary Development Plan to promote tourism as a growth industry. The Council said that it has had regard to Planning Policy Guidance (PPG) 24 Planning and Noise (issued by the Department of the Environment in September 1994). This guidance provides advice on how the planning system can be used to minimise the adverse effect of noise without placing unreasonable restrictions on development. PPG 24 says that the impact of noise from sport, recreation and entertainment will depend to a large extent on the frequency of use and the design of the facilities. 1 Local Government Act 1974, Section 30(3) 3

7 7. Part 4 of the Town and Country Planning (General Permitted Development) Order 1995 (the Order) gives general permission (with some exceptions) for temporary uses of land with the provision of moveable but not permanent structures. Motorcycle racing, including practice sessions, is permitted for up to 14 days in a calendar year. Article 4 of the Order gives a Council power to withdraw those permitted development rights. 8. In some cases which are specified in the Town and Country Planning (Environmental Impact) (England and Wales) Regulations 1999 ( the Regulations ), an Environmental Impact Assessment may be required and an applicant for planning permission has to submit an Environmental Statement. One of these specified categories of development is an application for Permanent racing and test tracks for motorised vehicles. At the first stage of this process the Council can consider the need for an Environmental Impact Assessment. This is known as a screening opinion. Annex A of Circular 02/99 Environmental Impact Assessment (EIA) deals with relevant thresholds and criteria for identifying the type of development where an EIA may be required. Paragraph A35 of this circular states that particular consideration should be given to the size, noise impacts, emissions and the potential traffic generation. An EIA is more likely to be required for developments with a site area of 20 hectares or more. Annex B of the same circular sets out selection criteria for screening the development specified in the Regulations. These include the duration, frequency and reversibility of the impact of the development 9. Councils have the power to serve Stop Notices to prohibit the carrying out of an activity on an area of land in some circumstances when they serve an Enforcement Notice or afterwards (section 183 Town and Country Planning Act 1990 as amended). Government guidance to local planning authorities (LPAs) on enforcement matters is contained in PPG18, issued in Councils have a general discretion to take enforcement action when they regard it as expedient. PPG 18 states: in considering any enforcement action, the decisive issue for the LPA should be whether the breach of control would unacceptably affect amenity of the existing use of land and buildings meriting protection in the public interest. 10. There are several Council planning policies which are of relevance in this case. These include G5 Development Outside Defined Settlements, B2 Setting of Listed Buildings, B6 Protection and Enhancement of Conservation Areas, T2 Tourism Related Development, C1 Protection of Landscape Character, C2 Areas of Outstanding Natural Beauty, P5 Reducing the Impact of Noise, TR7 Highway Considerations for New Development, L2 Formal Recreation Provision and L9 Noisy Sports. Policy L9 states that planning applications for noisy sports may be permitted where they do not adversely impact on sensitive areas, they have a main road location and adequate access, and they do not adversely affect nearby residents. 11. A departure application is a planning application which is not in accordance with one or more provisions of the Council s Development Plan. The Town and Country 4

8 Planning (Development Plans and Consultation) (Departures) Directions 1999 require a local planning authority to notify the Secretary of State of certain departure applications that they do not intend to refuse. 12. A section 106 (Town and County Planning Act 1990 as amended) agreement is an enforceable agreement between a person with an interest in an area of land with the Local Planning Authority or another relevant body. It can restrict the development or use of land. Such agreements are usually negotiated as part of the planning consent process but undertakings given by a developer can form the basis of such an agreement. Investigation 13. In March 2003 the Council agreed to donate 2000 to help sponsor an off-road motorcycle festival. Mr and Mrs Knight query why the Council sponsored the event when it knew or ought to have known that planning permission was necessary for the construction of a track which was necessary for that event. In response to this aspect of their complaint the Council has said that it will check that future sponsorship decisions by the Council make it clear that the organisers are responsible for obtaining all necessary permissions. 14. Also in March 2003, a club submitted an application for planning permission for continued use of the land for motocross and some engineering works to re-form the track jumps. The site is approximately 16.6 hectares in size. The complainants say that the proposed engineering works were extensive earthworks. The Council says that the extensive earthworks were carried out after the application was received. Officer A, formerly a development control officer with the Council, told the Commission s officer that the planning application had been invited by an enforcement officer following an internal complaint after it was noticed that the site was changing in character taking the use beyond any permitted development rights. 15. Mr and Mrs Knight have made a number of criticisms about the way the Council dealt with this planning application. They consider that the work on site breached several Council policies and that the application was seriously defective because it did not include an EIA. They say that the Council has now acknowledged that such an assessment of the need for an EIA was a necessary part of the application, which was not for temporary planning permission. Officer A told the Commission s officer that officers took the view that they only ever intended to recommend a planning consent for a temporary period. The application did not, therefore, fall within the Regulations and consideration of whether an EIA was necessary was not required although it would have been done had a permanent continued use of the site been contemplated. In a subsequent paper to Members of the Development Control Committee in August 2003 the Council s Strategic Director of Environmental Services stated that if officers had gone on to undertake a screening opinion on whether an Environmental Statement would be required, circular 02/99 would have been applied. The critical issue would have been whether the proposed development would have a significant effect on the environment. The Director stated that had a 5

9 screening opinion been required, it would not have concluded that an Environmental Statement was necessary. What would have been taken into account was the previous use of the site over a considerable period of time, monitoring of recent events, that the previous use under permitted development rights had attracted no complaints as far as he was aware, the controls imposed by short term temporary planning permission and that the area of the land was less than twenty hectares. 16. There is nothing on the Council s file to show that the need for a screening opinion on whether an Environmental Statement was necessary was considered at the time the application was received. The case officer asserted that he did consider this issue but there is no evidence to back up this assertion. The Council has now issued detailed guidance and advice to its development control staff on the determination of a need for an Environmental Statement by the applicant and the need for a written record of the decision. The complainants consider that if an EIA had been included in the application it is unlikely that planning permission would have been granted. 17. Work on site began before the Council had reached a decision on the application. Officer A told the Commission s officer that there was no justification for the Council to issue a Stop Notice or apply for an injunction because a planning application was being considered. The developer was warned by the Council that work carried out was at his own risk. 18. Mr and Mrs Knight say that the construction of a sizeable track at the site breached Council policy L9. They also say that when an Enforcement Notice was issued subsequently by the Council, the development was stated to be contrary to a number of other policies. Officer A told the Commission s officer that there is some conflict between policies. This particular use had to be in a rural area. He said that many applications conflict with an individual policy. Counsel s advice, obtained by the Council subsequently, concurred with the officers view that the application should not be treated as a departure application. 19. Mr and Mrs Knight say that local concern mounted as the full extent of the unauthorised work on site became evident. A local resident instructed a specialist planning solicitor to make representations on his behalf. He wrote a twelve page letter to the Council on 5 June 2003 to explain why he considered the recommendation for the temporary grant of permission to allow monitoring to occur was misconceived. He had seen the report to the committee and the recommendation made. He said that the officer s report contained manifold deficiencies and that There are ample reasons for concluding now that the proposal is intrinsically unacceptable and was not capable of being rendered compatible with all of the vital policy and environmental interests which weigh in favour of refusal. The solicitor said that there was minimal chance that the proposed condition 1 to secure restoration of the land could be enforced effectively. He criticised the report for its failure to mention the possibility of an Article 4 direction and he said that case law made it clear that if the land cannot in practice revert to beneficial agricultural use between events, then the 14 day tolerance could not apply because motor sport use for 14 days or less would have become the permanent use of the land. 6

10 20. Mr Knight spoke to the Head of Planning on the morning of 10 June 2003 and he says that the Head of Planning replied I think we ll go for deferment on this one. On the same day Officer A replied to the specialist solicitor s letter of 5 June. He said that the Council s Environmental Health Officer and the Council s Planning Solicitor would both give further advice to Members but in his view there was no overriding reason why the Committee could not determine the application. 21. The Council s Development Control Committee (DCC) considered the application on 10 June 2003 in the knowledge that a major event was due to be held on the track on 29 June Members were advised by the Council s solicitor that their role was as a regulatory body and, in that situation, no conflict could arise between them and any other function of the Council under which the major event had been funded. She gave additional advice to that in the written report on Human Rights issues. According to the transcript of the meeting the Environmental Health Officer advised Committee Members that noise recordings made between 2 and 4 May 2003 indicated that there was significant potential to cause disamenity to residential premises. He told the Committee that he did not consider there was sufficient evidence to fully reinforce total refusal of the application but rather to consider controlling the events and allowing a review in twelve months time. A planning officer also advised Committee Members that it was possible to withdraw permitted development rights but there had to be strong justification to do so. The complainants consider that the DCC was not fully aware of all the relevant policy issues before it reached a decision. The Council says that Committee Members weighed up and balanced the various issues, representations and planning policies before reaching a decision. 22. The DCC Members were not persuaded of the merits of the arguments put forward by the local resident s solicitor and resolved that temporary conditional planning permission should be granted for a twelve-month period. The conditions most relevant to this complaint are as follows. Condition 1 said that the use permitted must be discontinued and the land restored to its former condition on or before 30 June Condition 2 stated that the use must be limited to a total of 24 days before 30 June Condition 3 stated that the use must not take place outside the hours to Condition 5 stated that a schedule of events had to be submitted to the Council and the events could not take place until the schedule had been approved. No alterations could be made unless the Council had given written consent at least two weeks prior to the change of date. Condition 7 provided for the damping down of the site to prevent dust emission. 7

11 Condition 12 provided that no public address system could be used unless agreed with the Council. Condition 13 restricted the installation of mobile structures on the site. Condition 15 stated that details of any fixed structures or track markers that were to remain on site had to be submitted to the Local Planning Authority and agreed within one month of the date of the permission. Condition 18 stated that areas apart from the track that had been the subject of earth moulding had to be reseeded or returfed within one month of the date of the planning permission and no further engineering works or land moulding could be done without the Council s prior consent. 23. The Councillor who proposed that temporary permission be given said that he did not think it would be wise to prevent the June national event from going ahead. The complainants say that this is an example of the pressure Councillors felt themselves to be under as a result of the advertised June event. 24. Officer A told the Commission s officer that the DCC was advised that its decision could be deferred but it chose not to do so. He said that although Members expressed some concerns, the application had overwhelming support from the DCC. Officers made it clear, however, that they would not issue the decision notice until the specialist solicitor s representations had been fully considered and they had satisfied themselves on a number of points. 25. Council officers prepared the decision notice. On the afternoon of 27 June 2003 a letter was received from solicitors to the effect that they had been advised by Counsel that the Council s decision was unlawful on a number of grounds. Officer A told the Commission s officer that, due to a misunderstanding in the office, the decision notice was delivered without proper authorisation on 27 June This happened before the solicitor s comments had been evaluated. Council officers tried to retrieve the notice but were initially unsuccessful. The Council says that it was retrieved three days later. Officer A s view is that the delivery of the decision notice did not in itself cause injustice to the complainants. 26. The Council took no action to stop the event on 29 June Mr and Mrs Knight say that the event breached conditions 2, 3, 5, 7, 12, 13, 15 and possibly 18 on the decision notice but they say that not all of these breaches occurred on 29 June. Officer A told the Commission s officer that the DCC Members had indicated that they wished to support the proposed use of the site so there would have been no support for stopping the event. 27. The complainants say that when the event was in progress on 29 June, the noise nuisance was intolerable on the downwind side of the track. They say that, for some reason, the noise was assessed from the upwind side of the track so this assessment created a false impression to the DCC that no noise nuisance existed. 8

12 Officer B, a senior environmental health officer, told the Commission s officer that, according to file records, the wind was blowing from the east on that day and the noise would have had the potential to affect only a small number of houses. Mr and Mrs Knight live to the south of the site. No complaints were made to the Council s out of hours answering service while the monitoring was being carried out. Mr and Mrs Knight say that they tried to contact the Council s out of hours service but were unsuccessful so they submitted a written complaint. At the DCC meeting on 1 July 2003 several Members said that they had visited the site and surrounding area on 29 June. All reported that the noise nuisance was negligible and that they had not received any complaints. The Council says that the complainants are entitled to their view about the severity of the noise but it does not appear to be supported by other records of the event. 28. The Council sought legal advice about the validity of the decision notice. The Council was advised that there was no legal planning consent so the whole matter should be considered afresh, discounting earlier deliberations. 29. The solicitor employed by a local resident requested the Government Office for the South East (GOSE) to consider its earlier decision not to call in the application so that it would not be considered by the Council. GOSE did not intervene. 30. On 12 August 2003 the DCC considered the application and resolved that temporary planning consent should be granted to expire on 30 June The DCC s resolution contained an addendum allowing an event to take place in September Revised conditions were recommended by the Council s officers in the report to the DCC on 12 August It was stated in the report that: with the benefit of hindsight an admission can be made that there were some shortcomings in the processing of the application and the identification and assessment of various policy issues in the formulation of the [previous] recommendation. However the conclusion of the investigation is that these matters did not impact on the eventual outcome. The complainants consider that the advice given to Members on human rights issues at both the June and August meetings was too sketchy. The Council did however seek Counsel s advice on a draft prior to the August meeting before finalising it. I have a copy of this advice. A full transcript of the August meeting has been produced and I have a copy of this. 31. A local resident sought Judicial Review of the June 2003 permission. As the Council then reconsidered the application in August 2003, this resident decided to seek Judicial Review for a second time. 32. On 18 September 2003 the Council confirmed that it would propose that the June decision be quashed. A Judge granted permission to move for Judicial Review on 10 September. He found it arguable that a notice of planning permission was issued 9

13 on 27 June There was no full hearing. On 16 October 2003 the Council wrote to a representative of the applicant for Judicial Review. The Council said that, after seeking Counsel s advice, the Council had taken the view that, bearing in mind the court s decision, it was expedient to indicate the Council s preparedness to allow the second committee decision to also be quashed. This is because it was also arguable that the Council had no power to reconsider the matter on 12 August. There was no agreement reached about costs at that time. (A consent order to this effect was subsequently handed down by the Court in June 2004.) 33. On 20 February 2004 a planning application was advertised for, among other things, a field access to another piece of land near the site and close to Mr and Mrs Knight s home. 34. On 2 March 2004 the DCC considered whether to take enforcement action regarding a two-day world championships event proposed for 29/30 May 2004 which was in breach of a condition that no events must occur on consecutive weekend days. At that time the August decision was still the subject of a continuing action for Judicial Review. There had been no hearing and no consent order had been agreed. Members resolved not to take action against that breach provided that land restoration took place afterwards. Land restoration relates to plateau areas formed on the site rather than the track itself. 35. A further planning application for a field access to an area of land near the motocross site was received on 10 May This replicated one element of the February 2004 application. Mr and Mrs Knight say that they did not see any site notices displayed. On 20 May Mr and Mrs Knight saw that about 40 metres of hedge had been removed together with an earth bank of archaeological interest. Work was in progress to form an access. Officer C, a senior enforcement officer, met the owner of the land on 21 May and told him that if he continued with the works it would be at his own risk. Mr and Mrs Knight objected to the application. They say that the area was used for parking during the 29/30 May 2004 event without planning permission. 36. On 9 June 2004 both parties signed the consent order with respect to both Judicial Review proceedings, which quashed the two planning permissions. The complainants consider that by signing the consent order, the Council was admitting in effect that the procedures which led to the issue of the planning permissions were so flawed as to be indefensible in court. Officer D, a legal officer, told the Commission s officer that the Council took the position it did on a without prejudice basis as it considered that there was an arguable case. However, the costs of Judicial Review are high and protection against further costs was a consideration. The Council says that it did not admit to any defective procedure leading to the grant of planning permission. Since the temporary planning permission was due to expire in 21 days, there was little point in pursuing the matter in the courts particularly if this was going to involve significant cost to the Council that would have been difficult to justify as being in the public interest. 10

14 37. In their comments on the draft key facts the complainants say that after the trouble and expense of two Judicial Review proceedings, they expected to see a complete change in the Council s attitude. Instead they say that the Council continued to favour the motocross promoter s wishes in a way that seems to be contemptuous of the rights of objectors, the law and the status of the High Court. 38. Following a series of visits to other sites by DCC Members on 11 June 2004, the Council s officers were presented with an opportunity to brief Members on the latest situation, including a proposal from the motocross promoter to hold an event in May Although this was an informal private briefing, the Council says that the matters discussed were not considered to be secret. The complainants understanding is that the opinions expressed by Councillors were mainly favourable to the promoter and they consider that the opinions expressed were prejudicial to any future impartial consideration by the DCC of a future planning application. They consider that it should have been a formal agenda item. In a letter to the promoter dated 18 June, Officer A stated that the consensus view of Members was that, in principle, they would wish to support the continued use of the site for major motocross events. He emphasised that this was a without prejudice view and at that stage they were obviously unable to give due consideration to the final details of any proposed scheme, consultee responses and third-party representations. 39. On 22 June 2004 the DCC considered whether to reaffirm its earlier agreement to an event taking place in September 2004 as there was no longer an extant planning permission. The DCC took account of the briefing on 11 June Members were advised in the report by the Head of Planning Services that they had previously agreed prior to the event taking place that no enforcement action would be taken despite the fact that there was no valid consent. This was on the understanding that the land would only be used on this one occasion. Members were advised that, in addition to the option of reaffirming their previous decision, they could request the submission of a planning application for the September 2004 event. The DCC resolved to reaffirm its earlier agreement to the event taking place. The complainants consider that this decision was bizarre and perverse. 40. A planning application for the temporary use of the site for a new motorbike launch event in October 2004 was received at the beginning of September. 41. On 3 September DCC Members considered how to respond to the proposed temporary use of the site for car parking for an authorised music event nearby on September. Members were advised that there was no planning permission and no permitted development rights although the submission of a planning application with an Environmental Statement was expected later on in the month. They were advised that the Council could serve an Enforcement Notice and stop notice. But, if the organisers could not find an alternative facility this would call into question whether the event should take place or, alternatively, result in a significant car parking problem on roads in the locality. Despite the impending breach of planning control Members resolved not to take enforcement action because there would be a significant road safety problem if the site was not used for car parking. 11

15 They also resolved to invite a planning application for a temporary motorcycle, press, media and manufacturer s launch event. 42. The September 2004 motocross event previously agreed by the Council took place on 5 September 2004 without planning permission. Mr and Mrs Knight wrote to the Council on 7 September to place on record their objection to the noise emissions from the event. 43. The application for the launch event was decided under the officers delegated powers. The relevant issues were set out in a report as the original intention was for the PCC to consider the application on 26 October. Officers took account of the duration of the proposed use, the numbers of people likely to attend, the number of bikes likely to be tried out at the event and the likely impact on owners/occupiers in the area. In a letter to the local Member Officer A said that the Chairman of the DCC had agreed with his view that there were no sustainable reasons for delaying a decision until after the event had taken place and had authorised the issue of the decision notice. He described the event as relatively low profile. He said that he had persuaded DCC Members that, despite the fact that they were seen to support the event, it did require planning permission. He said that in the same letter the Environmental Health Officer and the Highway Engineer had recommended approval subject to conditions. On 19 October the Council issued planning permission for the launch event. Mr and Mrs Knight say that preparations on site began on the previous day. 44. There was a series of meetings between the Council s officers and the motocross promoter from 8 June The promoter s intention was to submit an application for motocross at a reduced intensity from that previously envisaged. He implied that he had started collecting data for an Environmental Statement. In these meetings and in a letter to the representative dated 13 October, the Council confirmed that a planning application would be required to use the land on a permanent basis accompanied by an EIA. At that time it was the officers understanding that there were no events scheduled to take place at the site. 45. A meeting of the DCC took place on 26 October By this time it was obvious that the promoter had not even commissioned the preparation of the Environmental Statement. In his report to the DCC Officer A said that, notwithstanding the advice given in several meetings with the promoter, the Council had not received a planning application. Members resolved to give immediate authorisation for enforcement action to restore the land back to its original contours within six months. The complainants say that it is disappointing that enforcement was delayed for so long. The Council says that up until the signing of the consent order, officers believed that they were dealing with an extant planning permission and the DCC had agreed to an event in early September It does not consider that the preparation of a detailed report and obtaining authorisation for enforcement action just six weeks later represents a significant delay. 12

16 46. In October officers requested that the February and May 2004 applications which included the new access to a site near the motocross site were withdrawn from the agenda for the DCC as a result of issues raised in late representations. These were addressed and on 16 November 2004 the DCC resolved to approve the retrospective applications submitted in February and May These applications included the alteration of an hours of use condition on a potato grading plant and the erection of a new livestock building, in addition to retention of the vehicular access. In the planning officer s report the DCC was advised of all the objections made including the County Archaeologist s objection to the development on the ground of the loss of important hedgerow and the bank on which it grew. The DCC was also advised that the application was complicated and a lot of time had been spent discussing the various issues. DCC Members were told that one option was to refuse the application and commence enforcement action. 47. On 21 December the Council wrote to the promoter to say that the Council was not in a position to allow use of the site for a major motocross event in May/June This was because there was no extant permission or permitted development rights for motocross, the service of an Enforcement Notice was imminent and an application for continued use for motocross would need to be accompanied by an Environmental Statement. The Council said that if the event did go ahead, the promoter would be at risk of possible legal action. This letter was written following a meeting during the previous week between Council officers and representatives of the promoter. 48. The Council did not serve an Enforcement Notice until the first week of January It required cessation of the use and removal of all associated structures and facilities associated with the unauthorised use. A town planning consultant sent a letter by fax to the Council on 10 January 2005 on behalf of the owner of the site. The consultant said that the owner of the site wanted to apply for a single event on the site during 2005 and it was likely that an appeal would be lodged against the Enforcement Notice. He said he would appreciate it if the views of Members could be obtained on whether the Council would be likely to take action such as an injunction or Stop Notice if the event went ahead during the appeal process. 49. The DCC met on 28 January In his report to the DCC, Officer A set out the options available to Members following the consultant s request of 10 January He said that it was the consensus view of the DCC and Parish Council that within the twelve months leading up to the last event, there had been a significant change in terms of the events taking place at the track. There had been national, European and world events. He stated that Counsel had advised that as the change of use now had a permanent character and did not revert to another use between events, the application would now fall into one of the categories to which the EIA Regulations 1999 applied even though the number of occasions on which the site was used was limited. The DCC took account of the representations received, legal advice and advice from the Environmental Health Manager and Highway Engineer. The DCC was informed that the proposed event was likely to take place on 4/5 June The 13

17 DCC agreed to continue to pursue enforcement action. Members resolved that the landowner s consultant was to be advised that the Council would not be able to grant permission, even for a two day event, without consideration of an Environmental Statement and that the Enforcement Notice would be re-served (see paragraph 50 below). The DCC s resolution also stated that the Council supported the principle that, if the event could be properly controlled, and if an appropriate section 106 agreement was agreed, the enforcement action should not prevent the event taking place. The content of this section 106 agreement was not specified in the resolution. The organisers then realised that they had insufficient time to organise an event in June 2005 so they requested that the date be changed to the August Bank Holiday. 50. The Council had to re-serve the Enforcement Notice several times to ensure that all the relevant documents were attached and to strengthen and improve the wording. The notice now in force was served on 10 February 2005 to take effect on 8 March 2005 and the Council took the opportunity to incorporate amendments suggested by Counsel to strengthen the Council s position should there be an appeal. The notice specified that the use of the land for motor sports activities had to cease and the land be reinstated within six months. Included with the Enforcement Notice was a screening opinion that the use of the site at that time fell within the EIA Regulations because it was a permanent racing and test track for motorised vehicles and that an Environmental Impact Assessment was required. 51. The DCC met on 15 February 2005 and resolved to update the minutes of the previous meeting to show that the date of the proposed motocross event had changed to the August Bank Holiday The complainants consider this procedure to be grossly irregular. Officer C s recollection is that although the likely date for the event was mentioned on 28 January, it was not confirmed or guaranteed. The complainants disagree with this. Confirmation of the August date was presented to Members for information purposes only and they were not asked to debate the point. 52. In an internal memorandum dated 25 April 2005, Officer B said that although the noise from the use of the site may be disturbing the extent of the disturbance was dependent upon wind direction and speed. It was the department s opinion that the noise did not constitute a statutory nuisance. This was because events on the site were infrequent, of short duration and restricted to limited hours. 53. On 23 June the Council wrote to Mr and Mrs Knight to inform them that an appeal had been submitted to the Secretary of State against the Council s decision to issue an Enforcement Notice. 54. The section 106 agreement was completed on 11 August The agreement placed over thirty obligations on the site owner, including limits on the hours of use of the site for racing on 27 and 28 August Details of the damping down measures, public address system and lighting had to be agreed by the Council. No preparatory work could take place before 1 August 2005 and the hours when this could take place were limited. The site had to be cleared of all facilities and 14

18 structures brought on to the site in connection with the event by 8 September Mr and Mrs Knight say that the site was not cleared by this date. 55. Mr Knight says that he has been advised by a solicitor that the use of a section 106 agreement in this case seems highly unusual. In his view the Council has used planning law to justify what he sees as a perverse decision to allow the August 2005 meeting to go ahead. The Council has told Mr Knight that it has taken Counsel s advice and is confident that its action is lawful. In its comments on the factual part of my report in draft the Council says that the DCC received reports at all significant stages. The Council also says that the site was not used for events outside the period of temporary consent without the DCC being asked to resolve whether to take action or without some form of control. It considers that decisions were reached in an open and transparent manner. The Council also says that the limited use of the site since June 2004 affects the weighting given to representations made about potential disturbance and nuisance. It considers that the limitations imposed by the section 106 agreement were as great if not greater than normal planning conditions. 56. Mr Knight says that on 26 and 27 August 2005 he was disturbed by the noise of shouting, music and motorcyclists coming from the field to the north of his home which was used as a car park. He was disturbed by helicopter noise and noise from the track on 27 and 28 August but he says that, because of the wind direction (from the south-west) he was less disturbed than residents in a nearby village. 57. The August event was the subject of an information report submitted to the DCC on 4 October The report concluded that given an event of this nature, it was inevitable that some minor instances of non-compliance with the terms of the legal agreement would arise. The car park (which was located in a field to the north of the complainants home) had to be used by campers on the Thursday night due to ground conditions at the main site. The helicopter rides took place from an adjacent field not covered by the agreement with that landowner exercising his permitted development rights. The remaining items on site were considered to be minor and were to be removed so any enforcement action was not considered in the public interest. 58. On 28 September 2005 the Planning Inspectorate confirmed that one of the two grounds of appeal had lapsed. As a result the planning merits of the alleged development were not considered when deciding the appeal against the February 2005 Enforcement Notice. 59. The Inspector issued his decision notice on 26 January The appeal was dismissed and the Enforcement Notice upheld with minor corrections and variations. Since that time there have been no motocross events at the site. 15

19 Conclusions The need for an environmental impact assessment 60. The development proposed in the 2003 planning application could have fallen into one of the categories of development where an Environmental Impact Assessment (EIA) is required. There is no evidence to show that the Council considered the need for an Environmental Statement. What the Council should have done was to consider whether an EIA was necessary. It is possible that this was done by the Case officer but there is no evidence to back up the officer s assertion that he did so. In the absence of a proper audit trail here I conclude that no assessment was made. The Council s failure to consider the need for an EIA was maladministration. I am pleased that, as a result of this case, the Council has issued detailed guidance and advice to its officers to prevent such a failure happening in future. 61. But what injustice did this maladministration by the Council cause Mr and Mrs Knight? An application for a permanent race track would clearly fall within the EIA regulations and so consideration would have to be given as to whether an Environmental Statement would be required. But I see no reason to doubt that the Council s officers were only ever prepared to consider temporary planning permission in the form of a trial run. So in those circumstances it would have been reasonable for the Council to conclude that no EIA was needed. It does not follow that because an EIA was considered necessary in 2005 it should have been so in 2003, before any trial run had taken place. So I conclude that the failure to make the assessment did not, on balance, lead to a failure to require an EIA in circumstances where one should have been required. In my view, therefore, it did not cause Mr and Mrs Knight injustice. 62. By 2005 it was open to the Council s officers to revise their judgement on whether the submission of an Environmental Statement was necessary in the light of subsequent events and the information collected during the trial run. When the corrected Enforcement Notice was issued on 10 February 2005 it included a screening opinion to the effect that the Council considered that the development fell within the EIA regulations and an EIA was required. Consideration of the planning applications 63. I have not considered whether there was maladministration in the way that the Council considered the planning applications in June and August The quashing of both planning permissions by the High Court, on an application by another aggrieved resident, has remedied any ill effects there might have been from maladministration in the decision-making process. 16

20 The June 2003 decision notice to the applicant 64. Delivery of the decision notice on 27 June, before consideration of the solicitor s comments was maladministration. But the notice was retrieved and I see no injustice to Mr and Mrs Knight arising from this mistake. Enforcement action 65. A significant part of this complaint is that the Council has delayed taking enforcement action and so has allowed the site to be used without the benefit of planning permission after permission was quashed in June The motocross site was used for events on 5 September 2004, 26 and 27 August 2005, and for car parking between 10 and 12 September Both the motocross site and the field access were used without planning permission. I can see that it could appear to the complainants and other local residents that the Council in effect turned a blind eye to breaches of planning control. But there is no obligation on the Council to take enforcement action in cases like this, it has a discretion to do so. 66. Prior to the quashing of the 2003 planning application, DCC Members had been advised that the May 2004 event would breach a planning condition. They resolved not to take action and I have seen no evidence of maladministration in the way that they reached that decision. 67. On 2 March 2004, 22 June 2004, 3 September 2004 and 26 October 2004 DCC Members considered whether to take enforcement action. Until 26 October 2004 they resolved not to do so. 68. Following the quashing of the planning permissions, the DCC was asked whether it wished to reaffirm its earlier agreement to the September 2004 event which did not have planning consent. The DCC considered the matter carefully and confirmed that it did. I do not consider that there was maladministration in the Council s decisionmaking process here and in those circumstances I cannot criticise the merits of the Council s decision to allow the September 2004 motocross event to take place without planning permission or without taking enforcement action. 69. On 3 September 2004 the Council was also faced with a large music event due to take place near to the site on September. The motocross site was to be used for car parking for the music event without planning permission. I consider that the Council properly considered all the relevant issues, including the fact that there was no planning permission, and so once more I have no reason to criticise the merits of that decision. 70. In all the circumstances I do not consider that there was significant avoidable delay prior to the authorisation of enforcement action on 26 October The question of enforcement was again properly considered at the DCC meeting on 28 January Although DCC Members had authorised the service of an Enforcement Notice, they also resolved that the Council supported the principle that 17

21 if the motocross event planned for the summer of 2005 could be properly controlled with an appropriate section 106 agreement in place, enforcement action should not prevent the 2005 event taking place. In my view the DCC Members took account of all relevant issues and I see no maladministration in their decision-making process. 72. The DCC Members were aware of the option they had to refuse the application for a new field access and take enforcement action but after properly considering all the relevant issues they did not wish to do so. Although Mr and Mrs Knight did not want the application to be approved, in my view this was a decision the Council was entitled to reach. Other issues 73. The decision on whether to sponsor an event at the track and the decision on planning applications were two separate Council functions. Before they reached a decision DCC Members were in my view given appropriate advice that their role in the DCC was as a regulatory body. In that situation no conflict could arise between them and any other function of the Council such as decisions on the provision of funding. I consider that the Council s agreement to check all future sponsorship decisions it makes to clarify that organisers are responsible for obtaining all necessary permissions is a reasonable way forward. 74. The complainants have criticised the 11 June 2004 briefing. In my view the Council s officers took an opportunity that was available to keep Members up-to-date and no binding decisions were taken. I see no maladministration here. 75. The complainants have criticised the Council s agreement to the change of date for the 2005 event. It does not appear that the date was a critical issue for Members. They were properly advised that the date had changed. I see no maladministration here. 76. Understandably the complainants are concerned about the way that decisions were reached about the use of the site. It would have been more satisfactory had the landowner or promoter submitted a planning application in the normal way after the 2003 decisions had been quashed. The use of a section 106 agreement to control a planned event is, however, a legitimate process and a material consideration. In the absence of a planning application I do not consider that it was maladministration for the Council to seek to control the 2005 event by the use of a section 106 agreement. Finding 77. For the reasons given in paragraphs 60 and 64 above I find that there has been maladministration by the Council. However I have concluded that these shortcomings have not caused injustice to the complainants in that their amenity has not been affected directly by the Council s maladministration. Nor do I conclude that the maladministration has caused them outrage that is separable from their strongly-held opposition to the use of the site by its owners or organisers of events which have 18