SPSO Individual Decisions

C complained on behalf of their clients about a decision made by the Scottish Environmental Protection Agency (SEPA) not to renew a ‘Paragraph 19 Exemption’ (the exemption) for a land re-engineering project. Normally, waste management requires a licence, however an exemption can be applied which allows for the use of waste for the construction, maintenance or improvements of a building, road, railway, airport, dock or other transport facility; recreational facilities; drainage; or certain engineering works. C’s clients had been granted an exemption for four consecutive years but their fifth renewal application was declined by SEPA. We confirmed that we would not be considering the professional judgement of SEPA, but could look at whether they provided a reasonable explanation for their decision not to renew the exemption. We noted that the original reason SEPA gave for refusing the application was that the proposed infill of the upcoming phase was of a depth exceeding the dimension of the final cross sections shown on the plans. Additionally, SEPA said that when their officers inspected the site, they observed that waste had been deposited onto waterlogged land. This is not permitted under the terms of an exempt activity. In the correspondence with C that followed, we found that SEPA gave a number of differing reasons for their decision not to renew the exemption. When C advised SEPA they had referred to the wrong plans in reaching their decision, rather than provide an explanation or apology, SEPA gave a different reason for declining the renewal application. We found that SEPA did not adequately address a number of matters raised by C in relation to their decision. As such, we upheld this complaint.

C, a representative of an organisation that provides support to planning application objectors, complained on behalf of an objecting neighbour (A). C raised a number of concerns about the council’s handling of a retrospective planning application. An unauthorised development had been reported to the council’s planning enforcement team. The retrospective planning application was approved, subject to conditions. C complained that the council failed to reasonably assess the risk of flooding at the site, that they failed to follow correct procedure for the scale of the development and failed to take into account an objection submitted by the Scottish Environment Protection Agency (SEPA). We reviewed the relevant planning documents and sought independent advice from a planning adviser. We found that there was a failure to seek a flood risk assessment, particularly in light of the concerns raised by SEPA, the fact the development was on a listed flood plain and the Planning Officer had identified a risk of flooding as a reason for recommending refusal of the application. As such, we upheld complaint C’s complaint about the failure to request a flood risk assessment. In respect of C’s concerns about the council’s consideration of SEPA’s consultation response, we found that the content of SEPA’s response was accurately summarised in the Planning Officer’s report to the Planning Committee. We did not uphold this aspect of C’s complaint. Our final consideration was whether the council failed to refer the planning application to Scottish Ministers. We concluded that the council should have treated SEPA’s response as an objection to the planning application and that this should have led to the application being referred to Scottish Ministers. We upheld the complaint.

C complained that the council, as the building control and planning authority, failed to take reasonable action to address an alleged non-compliance with building control standards legislation and an ongoing breach of a planning condition in relation to the discharge of wastewater at the development site where they resided. C's own property had been built a number of years previously. An issue arose regarding the discharge of wastewater from new houses which were being built at the development site. We took independent advice from a building control adviser and a planning adviser. We found that the developer initially planned to connect the properties at the development site to the sewer network and that building warrants were approved based on their proposals in this respect. When it became apparent that the sewer network required upgrading works before the new houses could be connected to it, we considered that the council undertook reasonable steps to ensure that the revised plan of using a septic tank as a temporary measure was acceptable in building standards terms. We were satisfied that the council sought comments from relevant authorities (Scottish Environment Protection Agency and Scottish Water), both of whom were satisfied with the proposed temporary solution. We were also satisfied that provisions were made in later building warrant approvals to ensure that the developer took responsibility for decommissioning the temporary system and connecting to the sewer network once the upgrading works were completed. In relation to C's complaint that the council failed to take reasonable action in relation to an ongoing breach of a planning condition attached to the development, we were satisfied that, whilst the council had a range of enforcement powers available to them, it was a matter for their discretion as to whether or not to take formal action, to allow the breach to remain, or to take less formal action with a view to reaching a resolution. We found

C complained to us about the actions of the Scottish Environment Protection Agency (SEPA) in relation to a site near their home. They said that SEPA failed to adhere to their guidance in relation to the information required to carry out a risk assessment for the site. We found that SEPA were entitled to reach an initial decision that no further assessment was required on the site based on the information they held at that time. There was no evidence that they did not adhere to their guidance in relation to the matter and we did not uphold the complaint. C also complained that SEPA failed to ensure that adequate site investigations were carried out for the site and that they took into account unreliable information. We found that the decisions made by SEPA, based on additional information that had been provided to them and on a basis of a site visit, were decisions that they were entitled to take. We did not uphold this complaint. However, we found that SEPA should have informed C that they were unable to open the videos/photos that C submitted. We provided feedback to SEPA about this matter. Related reading View Decision Report 201806100 as a PDF (24.17 KB) Updated: November 18, 2020

C complained to us about the actions of the council in relation to a development near their home. They said that the council unreasonably accepted unreliable information from the applicant and failed to ensure that adequate investigations were carried out in relation to drainage from the site and ground water level. We took independent advice from a planning adviser. We found that the council acted reasonably in accepting advice on the matter from the Scottish Environment Protection Agency. They were entitled to reach the decision they did, given that advice. We did not uphold this complaint. C also complained that the council unreasonably failed to enforce a planning condition in relation to the site entrance. We found that the planning officer had consulted roads officers on the details submitted to discharge the roads conditions. The council’s position in respect of there being no breach of consent was one that they were entitled to take. We did not uphold this complaint. In addition, C complained that the council unreasonably failed to ensure that a remedial strategy for field drainage was submitted in line with a planning condition. We found that it was a matter for the council to decide what action it is appropriate to take in respect of enforcement, and whether or not information submitted is sufficient to discharge conditions. In this case, the decisions taken by the council were decisions they were entitled to take and we did not uphold the complaint. Finally, C complained that the council unreasonably failed to ensure that the burial site visibility splay complied with their roads standards. We found that it was reasonable for the planning officer to have accepted advice from roads officers that the visibility splay had been inspected on site and determined to be acceptable, and to have discharged the condition accordingly. The council undertook the correct processes in determining the planning application and the discharge of the conditions, and therefore

Mr C complained about the council's handling of a planning application. In particular that the council had failed to consider their waterside development policy (policy Des 9), had failed to consult with the Scottish Environment Protection Agency (SEPA) and had unreasonably accepted that works for the planning application were initiated on time. Mr C also complained about the council's communication with him. We took independent planning advice. We found that that policy Des 9 should have been referred to in the report of handling (a report containing information on a planning application). It was not possible to know whether this policy had been taken into consideration during the processing of the planning application, as was required. We also found that it was not possible to say whether consideration of policy Des 9 would have resulted in a different outcome. We upheld this aspect of the complaint. We also found that SEPA should have been consulted and we upheld this aspect of the complaint. We did not find any evidence that the council had unreasonably accepted that works for the planning application were initiated on time and we did not uphold this part of the complaint. Regarding communication, we found that some of the issues raised by Mr C had been not been adequately addressed, however, other issues raised by him had been reasonably clarified. We were concerned that a further response letter had had to be issued to Mr C. The council had accepted that there had been a delay in responding and that Mr C should not have had to submit a formal complaint to prompt a full response to his enquiries. We upheld this aspect of the complaint.

Mr C lives near a recycling centre, and complained about the way the Scottish  Environment Protection Agency (SEPA) dealt with complaints of noise and dust coming from there. He complained that SEPA had failed to take appropriate sanctions against the site operators, saying they had been responsible for increased pollution coming from the site for the last few years. SEPA said that they had engaged with Mr C through a number of processes in seeking to address his complaints and concerns. They said that they were actively working to modify the existing licence to include prescriptive noise limits and operator monitoring to demonstrate this. We took independent advice from an environmental health adviser. They confirmed SEPA's obligations in the circumstances of this case, both as a regulator and a waste management licensing authority. The adviser noted that SEPA had not taken the opportunity to put prescriptive noise levels in the waste management licence at the outset, but had now taken steps to rectify this. In terms of SEPA's role as regulator, we considered that they generally complied with their obligations in relation to having a policy and framework for enforcement. However, we noted that noise monitoring was not carried out sufficiently and promptly by the regulator. With regard to enforcement, the adviser said that regulators have a duty to act when breaches of regulations or licence conditions are found. We considered that SEPA had met many of their obligations, however, noted that SEPA did not take the opportunity to serve notice for repeated non-compliance. We also found that SEPA took enforcement action of providing advice and guidance to limit noise and dust emissions from the centre; however, they did not serve an enforcement notice to limit noise and dust emissions to an acceptable level. Therefore, we upheld Mr C's complaint.

The Scottish Environment Protection Agency (SEPA) stopped Mr C's shipping container for inspection. Mr C complained about the amount of time it took SEPA to release the hold on the container and the amount of time it took SEPA to arrange a further inspection. Mr C also complained that SEPA did not communicate reasonably. We found that, during the period that the hold was on the container, SEPA were undertaking investigations to establish if the container could be returned to Mr  C's load site, and to establish if it was safe for their staff to carry out a further inspection there. We found that the hold on the container was released 12 days before it was returned to Mr C's load site for inspection. We found that the container was not moved as soon as the hold was released because of a disagreement between Mr C and his shipping agent. We, therefore, did not uphold Mr C's complaint that SEPA took an unreasonable amount of time to release the hold on the container. We also found that SEPA were in a position to carry out a further inspection of the container five days after the hold on the container was released. However, we found that they were not able to carry out this inspection because the container remained in port due to the disagreement between Mr C and the shipping agent. We did not uphold Mr C's complaint that SEPA took an unreasonable amount of time to arrange a further inspection of his container. Regarding communication, we found that SEPA should have communicated to Mr C, or to his shipping agent, why there was a delay in releasing the hold on the container. We upheld this aspect of Mr C's complaint.

Mr C lives near the site of a former opencast mine where works were taking place. He accesses his home via a road running adjacent to the site. Mr C complained that the Scottish Environment Protection Agency (SEPA) failed to properly consider an application he made to them. He was also unhappy that SEPA had accepted the local authority's view that the works involved had permitted development status. Mr C said that, as a result of SEPA dealing incorrectly with the application he made to them, his access to his home was sometimes impeded by flood water. We took environmental health advice. We found that, with regards to the application, the developer had made an explicit statement that planning consent for the site was not required, and that this statement had been confirmed by the local planning authority. We found that SEPA, as a licencing authority, had no capacity in the matter of flood risk that Mr C had complained about, and that this was a matter for the planning authority. As such, we did not uphold the complaint. Mr C also complained that SEPA had not dealt reasonably with his complaint. We found that there had been delays in SEPA handling Mr C's complaint, and that it had not been dealt with in accordance with the stated complaints handling process. We upheld this aspect of the complaint.

Mr C complained about reinstatement works at the site of a former opencast mine. Mr C accesses his home via a road that runs adjacent to the site and he complained that the council unreasonably considered a development to be permitted when it did not satisfy the correct requirements. When Mr C first raised his concerns, the council maintained their position about the planning status of the land, until the council reversed their view two years later. Mr C also complained that they failed to consider the risk of flooding when granting the works permitted development status. He said that access to his home was sometimes impossible as flood water remained on his access road and did not drain away as previously. Finally, Mr C felt that the council's handling of his complaint was unreasonable. We took independent advice from a chartered town planner. We found that the council had been presented with sufficient information around the time of Mr C's initial concerns to determine that planning consent was required. Instead they determined that the proposed works constituted permitted development. It was only two years later after protracted correspondence that they accepted there had been an error. Therefore, a number of processes and consultations, which should have occurred, did not. We considered the fact that, had the works been properly assessed, the council should have explicitly considered the use of their powers in relation to flooding. We also found that Mr C had been given incorrect information regarding the role of the Scottish Environment Protection Agency (SEPA). In dealing with Mr C's complaint we found that there was very extensive correspondence; however, there had been some delays in the council responding and Mr C and he was not always kept updated. For these reasons, we upheld all of Mr C's complaints.

Mr C raised a number concerns about the way that the Scottish Environment Protection Agency (SEPA) regulated a site. As part of the regulations, the site was required to maintain records of the waste materials that were being transferred to and used on the site. Mr C complained that SEPA had failed to ensure that the site maintained appropriate records in accordance with the regulations. We found that SEPA had been aware of the record-keeping issues at a site inspection and it had been recorded that this should be followed up at the next inspection. We did not find evidence that this had happened at the next inspection and we were critical that SEPA did not take timely action. We also noted that SEPA had written to the site annually to request waste data. We found that when the site operator did not provide this information over a period of consecutive years, SEPA did not take any action to ensure it received the information requested. We upheld the complaint and made a recommendation. Mr C was also unhappy about the way SEPA investigated his complaint that staff at the site were burying tree bark, which he said was not in accordance with the terms of the site's registration. In response to Mr C's complaint, SEPA said that the volume of buried bark was unlikely to be significant and said that it did not present a risk to health or the environment. For these reasons, SEPA did not consider that it would be appropriate to conduct intrusive site investigations to establish the volume of buried bark or to require the removal of any buried bark. We found that SEPA officers had visited the site after Mr C raised concern about this matter, and we were satisfied that SEPA took appropriate steps to investigate the concern. We did not uphold this complaint.

Mrs C's neighbours applied for and were granted by Scottish Environment Protection Agency (SEPA) a licence to discharge treated sewage effluent into a ditch on their property. Mrs C complained that this allowed discharge into a ditch that runs dry and causes dangerous pollution to be deposited on her land and severely impacts on her enjoyment of her property as well as having a dangerous adverse effect on human and animal health. SEPA could find no evidence of such a nuisance being caused. Mrs C felt that SEPA did not do enough to assess the application and had not done enough to address her concerns about the actual operation of the scheme. We did not uphold Mrs C's complaint as we concluded SEPA had taken reasonable steps to minimise the risk of a nuisance and were not the responsible body for enforcing such a nuisance (though we noted no nuisance had actually yet been proven to exist). Related reading View Decision Report 201602603 as a PDF (11.06 KB) Updated: March 13, 2018

Mr C complained about the council regarding a planning application they had approved for a residential property to be built in a site adjacent to his home, which is on a cliff edge. After approval of the plans, the Scottish Environment Protection Agency (SEPA) had visited the site and, in contradiction of the plans, recommended that building should not take place within ten metres of the edge of the cliff. Mr C therefore questioned why SEPA were not consulted at the time of the application and the council responded to say that there was nothing about the application which would have triggered a consultation. As part of our investigation, the council provided SEPA's guidance for which applications they wished to be consulted upon. This did not include any reference to developments on or near cliff edges. The planning advice we received was that the decision not to consult was at the council's discretion in the circumstances. As such, we did not uphold the complaint. Related reading View Decision Report 201508851 as a PDF (11.07 KB) Updated: March 13, 2018

Mr C, who is an MSP, complained on behalf of his constituent (Mr A) about development on a site close to his home. Mr A was the former owner of the site and still held licenses from the Scottish Environment Protection Agency (SEPA) in relation to it. Mr A complained that works on the site were affecting his private water supply but that SEPA had done little to prevent this. He also complained that when planning applications were made to the local council, SEPA did not make a reasonable response and had understated information. Furthermore, he said that they did not make a reasonable response to his concerns about the licenses he held. We investigated the complaint and found that SEPA had looked into Mr A's concerns but found no evidence to suggest that his water supply had been detrimentally affected. The developer had been required to apply for a license and submit data and testing information. Mr A was given appropriate advice. We also found that SEPA had made comments on the planning applications and that while Mr A would have preferred them to have made objections, this was a matter for their discretion based on their officers' professional opinion. Accordingly, these complaints were not upheld. However, we found that SEPA had unduly delayed in responding to Mr A's queries about his licenses and for this reason upheld this part of the complaint. Related reading View Decision Report 201407037 as a PDF (11.26 KB) Updated: March 13, 2018

Mr C complained that the Scottish Environment Protection Agency (SEPA) had failed to investigate his complaint that his neighbour's septic tank was discharging unsafely into a roadside ditch and that it was, on occasion, flooding his back garden. Mr C said his submission to SEPA had been ignored and SEPA had refused to test the discharge. Mr C also complained that SEPA could not show that the consent to discharge granted in 1968 was being properly adhered to. SEPA said their officers had investigated Mr C's complaint in line with their procedures, which allowed officers to take discretionary decisions on the extent of any investigation carried out. The site had been visited three times, with no evidence found by officers to justify further testing. Although the issues around the conditions attached to the consent to discharge had not been raised by Mr C initially, SEPA did not agree the conditions were being breached and said there was no evidence to that effect. We found that SEPA had followed their procedures correctly in investigating the complaint. The procedures allowed their officers to exercise their professional judgement, which they had done in a reasonable fashion and which they had extensively documented at the time. We did not find they had failed to respond to Mr C's complaints and, although we accepted that he did not agree with their conclusions, this was not sufficient to constitute maladministration. Related reading View Decision Report 201405344 as a PDF (11.29 KB) Updated: March 13, 2018

Mr C obtained planning permission to build a house and garage. After construction work began, a neighbouring property owner complained, and the council's planning enforcement officer made a site visit. The officer considered that there was a breach of one of the conditions of the planning consent, which required landscaping plans to be submitted before work started on the site. He also found that the building was not being constructed in accordance with the approved plans, potentially leading to an unacceptable increase in the overall height of the finished building. He advised the builders to cease work, then issued a temporary stop notice requiring all work to stop pending submission and approval of the required landscaping plans. The plans were later submitted and approved, and work recommenced, but Mr C encountered further delays when he was told that he would need approval from the Scottish Environment Protection Agency (SEPA) for his proposed drainage system. Mr C complained that the council were heavy-handed in their approach to planning enforcement and did not work with him to resolve the problems on site. We found that the council did not take formal enforcement action against Mr C's development. However, they did take reasonable steps to halt work on site to ensure that an acceptable building was being constructed. Although we were satisfied with their approach to planning enforcement, we were critical of their communication with Mr C. We found no evidence to suggest they consulted with him to check that parties were working to the correct set of plans. We also found that the council raised enforcement issues in a piecemeal fashion rather than providing Mr C with a comprehensive assessment of the development against what they considered acceptable. Finally, we found evidence of inadequate communication between the council's planning and building control services. Although we did not uphold Mr C's complaint, we made two recommendations.

In 2013 Mr C was an objector to a planning application. As part of his objections he asked the council to consult with the Scottish Environment Protection Agency (SEPA) about flood risk at the development site. During the planning process, Mr C discovered that SEPA employees were the agents for the planning application. SEPA had provided advice on the flood risk assessment (FRA) during a previous planning application in 2011. This application had been withdrawn and a later application in 2012 had been rejected. The council approved the 2013 application, subject to conditions, and Mr C was unhappy with SEPA’s involvement, and their response to the council’s consultation. Mr C complained that staff failed to declare an interest before they provided advice in 2011. Mr C said that SEPA had unreasonably removed an allowance for climate change from the FRA and had not referred to Scottish planning policy in their advice to the council, despite both of these being a requirement in SEPA's guidelines. He also complained that SEPA should have required an updated FRA because the position of the site access road had changed. Our investigation found that SEPA’s assessment of the conflict of interest was a matter excluded by our governing legislation, and was a discretionary decision on their part. Our investigation was restricted to considering whether they had followed their procedures and if these were appropriate. SEPA had investigated and found that there was a perceived conflict of interest, but no evidence of an actual conflict. We found that their investigation had been thorough, and that the decision they reached was supported by the evidence they gathered and in line with their employee code of conduct. We also found that SEPA had conducted a thorough investigation of the advice given, with separate reviews of both the planning advice and the flood risk and hydrology advice they had provided. However, we found that SEPA's published guidance said that an allow

The council gave planning approval to Mrs C's neighbour to demolish a building and build a garage and boundary walls. Mrs C then complained that the council failed to protect her access to her property and a general right of way, and failed to take full consideration of the flood risk and consult with the Scottish Environment Protection Agency (SEPA). She also complained that they had earlier failed to take action when her neighbour had demolished the building (which Mrs C claimed to own) without planning permission. After taking independent advice from one or our planning advisers, we found that the council had acted reasonably. Mrs C had claimed that the walls effectively left her property land-locked. She also complained that they blocked a right of way used by pedestrians to access the foreshore. The council had approved the development based on the fact that there were many other lanes in the area with access to the foreshore, including one on the opposite side of Mrs C's property. They also said there was no recorded right of way on the lane, and they did not consider that it would be reasonable to establish one. Our view was that this was reasonable and proportionate. The council accepted that there is some sea flooding of the foreshore and nearby streets and lanes each year. However, the properties involved in the application had not been flooded and were outside the flood-risk area on SEPA's maps. The council considered whether the development would cause a material increase in properties at risk of flooding - this is the trigger for mandatory consultation with SEPA on a planning application. They asked their own flood prevention unit for advice, who said that as the development did not cause a material increase, consultation with SEPA was not required. This was confirmed by SEPA's senior planning adviser. After some adjustments to the plans to allow sea water to escape in the event of flooding, the application was approved. Our adviser conside

Mr C complained on behalf of a company who obtained planning consent from the local council to open a food processing site close to their main site, which is on a river estuary. The main site had inherited a deep water outfall from its previous use as sawmills, which was controlled by the Scottish Environment Protection Agency. The company intended, as an interim measure, to transfer effluent by tanker from the secondary site to the main site while a pipeline was constructed between the two. However, this did not prove necessary and from the first day of operations, effluent between the two sites was pumped by pipeline and the trade effluent was never released to the Scottish Water waste water network. There is provision (process 27) in the arrangements between licensed providers and Scottish Water for a licensed water provider to submit a trader information and allowance form for a 'non-return to sewer' allowance in cases such as this. As Scottish Water do not grant retrospective consent, the licensed provider (in this case, Business Stream) should seek the relevant information from the customer in advance and submit it to Scottish Water for approval. This did not happen here, although the allowance was later given from April 2012. We upheld the complaint that Business Stream unreasonably delayed in advising the company to submit the form, and we made a recommendation about this.

Mr C complained about the council's handling of a planning application for a large scale dairy milking facility near his home. He said that the council had dealt with the application in a similar to way to that of a domestic planning application, which he did not consider appropriate given the scale of the facility. He was also of the view that the council had failed to properly assess the impact, in terms of noise, visibility and odour, that the development would have on his property. He also complained that the council did not notify him about the planning application. Our investigation found that, as his property did not directly border the development, the council were not required to notify him of the application. We also found that they advertised it in the local paper, fulfilling their responsibilities in terms of the planning regulations. The planning department had also consulted the Scottish Environment Protection Agency and their own environmental health department before granting consent. We noted that the developer had sought permission for a number of planning applications, each of which was of a scale which would be considered a local development in planning terms. As we found no evidence to suggest that the council had acted outwith their own procedures or legal responsibilities, we did not uphold Mr C's complaints. Related reading View Decision Report 201204961 as a PDF (11.2 KB) Updated: March 13, 2018

Mrs C is a landowner who owns a stretch of river close to a fish farm. She complained that when Highlands and Islands Enterprise (HIE) approved a grant for expansion of the fish farm, they did so without conducting sufficiently robust environmental checks and did not reasonably investigate the probable environmental impact. Our investigation, which included taking independent advice from one of our advisers, found that HIE had used a reasonable scrutiny process and had applied it properly. We did, however, find that some of the information about how the fish farm was complying with the environmental regulations was supplied by the applicants themselves. Our adviser said that, while this complied with the process in place at the time, it would be more robust if such information was obtained from a third party, such as the relevant regulatory body. In this case the Scottish Environment Protection Agency (SEPA) was the regulatory body involved. The fish farm had provided HIE with copies of licences issued by SEPA and HIE had made some further enquiries to ensure that the licences were current and that SEPA were working with the fish farm to ensure on-going compliance. HIE have since reviewed their procedures and are in the process of issuing revised guidance to staff. The new procedures mean that in future any information on compliance with environmental regulations and requirements will be obtained from the regulatory body rather than the applicant. Overall, we were satisfied that it is not HIE's role to monitor or police compliance. In this case the application documentation was correctly scrutinised, assessed and evaluated, and we also satisfied that in future the system will be even more robust. Related reading View Decision Report 201103656 as a PDF (11.54 KB) Updated: March 13, 2018