Agenda item

Members of the public may ask questions or make statements at this meeting if they have given notice and provided the text to Nicki Lishman and Louise Hancock of Democratic Services (contact details below) no later than midday on 26 September 2024. Each speaker should limit themselves to 3 minutes on any item.  Members of the public who have given notice will be invited to speak:

·           at this point in the meeting if their questions/statements relate to matters which are not otherwise on the Agenda (subject to an overall time limit of 30 minutes);

·           when the relevant Agenda item is being considered if they wish to speak on a matter which is on the Agenda for this meeting.

 

If you are exercising your right to speak at this meeting, but do not wish to be recorded, please inform the Chairman who will instruct those taking a recording to cease whilst you speak.

Ann Meagher – local resident

 

My question relates to enforcement:

 

On 8th March 2023 CLEUD 1 was approved allowing vehicle movements from 6.30am. 

On 21st June 2023 CLEUD 2 was submitted to allow vehicle movements from 5.30am (a period of 15 weeks)

 

I asked the North Yorkshire Council Planning Enforcement Officer why, in those 15 weeks, there was no enforcement action when there was vehicle movement to and from the mill starting at 4.30am nearly every day.

 

I received two emails on 9th May and 19th June stating - "the Local Planning Authority is considering how best to address the issues with regards to non-compliance and is in communication with our legal representatives with a view to ensuring compliance with the lawful hours of operation".

 

My question is - Why, in those 15 weeks, was the Planning department either unwilling or unable to commence enforcement action, and what was the result of the discussions with the legal representatives to ensure compliance?

 

Can I just add that I suspect Mosey will continue to submit CLEUDs on a regular basis, for however long it takes, as it seems to be the way they will eventually get what they want - 24/7 vehicle movements. Why don't Planning stop wasting time and money and just tell Mosey they are allowed vehicle movement 24/7? Mosey know that nobody can stop them. We are utterly powerless and this is why we feel there is no other alternative but to pursue a Traffic Regulation Order 

 

Patrick Meagher – local resident

 

Please can you include the following question at Point 4 of the Agenda:

 

"Condition 1 of Planning Application 11/00498/73A (which was retrospective) is clearly no longer fit for purpose as it was never enforced and has now become obsolete through two Certificates of Lawfulness.

 

Condition 2 was always unenforceable as the Local Planning Authority ("LPA") and I quote: "cannot find a record of the operating capacity of the mill in August 2011".

 

The LPA no longer has the ability to influence mill expansion and the resultant increase in truck movements. The mill now has an Environment Permit for 850 tonnes per day 24/7 (25,854 tonnes per month). This equates to 126 forty-four tonne truck movements per day or 3,830 per month.

 

As the LPA is powerless, what avenues are available to nearby residents to preserve or improve the amenities of the area through which 44 tonne Heavy Commercial Vehicles run other than by applying for a Traffic Regulation Order?"

 

Edith Tucker (delivered at the meeting by Daniel Harry, Head of Democratic Services)

 

Re: CLEUD granted for increased operating hours re Ian Mosey Limited

 

Given the approval for increasing the operating hours at Blackdale Mill to 5.30am from 6.30am, I would be interested to question and understand the following.

 

As the application had been granted due to continued ‘violation’ of the existing operating hours over a number of years, why have local complaints of noise and disruption not been investigated/acted upon?

 

Why has no action been taken when admitted clear breaches of the regulations have been made?

 

The granting of the application would ‘appear’ to be a reward for an admission of violating the conditions of the original operating schedule.

 

Given this is the case, why would the ‘new’ operating hours schedule be adhered to at all?

If any checks had been carried out prior to the granting of the new schedule, it would be apparent that the HGV’s operate at any time from around 4am, Bank holidays etc etc currently. A simple check of movement records would show this. 

 

These movement records are the ones that Ian Mosey Limited has used a proof of violation when requesting the new CLEUD!

 

Finally, if these checks are made (it could be as simple as requesting a vehicle movement record on a monthly basis by the Officer in charge) what sanctions would be placed on Ian Mosey Limited for non compliance?

 

It would appear that violations are rewarded and local voices are ignored.

 

Mark Wilson – local resident

 

When Moseys were granted their first CLEUD in March 2023, they straight away breached the new operating hours that they had been granted. I sent 4 emails to Martin Macbeth (Jill Thompson copied in) in April, May and June with pictures showing a Mosey wagon in the village on a Sunday. Each time I got a reply saying they were discussing it with their legal representatives about how best to address it. As we know they messed about until CLEUD 2 was submitted when they claimed breaches could not be investigated.

My question is "why when CLEUD 1 was approved in March 2023 is he still allowed to go back to 2011 to show evidence of breaches to ask for more operating hours in another CLEUD application? Surely the granting of a CLEUD with new permitted hours should be a line in the sand to move forward from that point and can we now expect any new breaches to be investigated and enforced?"

Peter Allen – local resident

 

‘Will the councillors explain how a fresh certificate of lawfulness can be granted within six months of one being granted? The same information that had been used to secure the first was used again to apply for the second. Common sense would assume that the clock would start ticking in 2023 not 2011 as the applicant seems to be saying. It should be borne in mind that complaints about the breaching of the certificate of March 2023 were not allowed whilst another application was being considered.

 

Jim Tucker – local resident

 

Can the Ryedale residents of Hovingham, Gilling, Oswaldkirk and surrounding villages look forward with confidence, based on the evidence of the past decade, to the same erosion of amenity from that previously enjoyed living in a tranquil rural location?

 

The basis for this question is the apparent inaction over the past decade by planning compliance officers following any complaints regarding the operation of HGVs by Ian Mosey Limited (IML) outside of permitted hours, only for those same breaches of planning conditions to form the basis of a decision to grant a Certificate of Lawful Development.

 

The operating hours for HGV movements was increased to 06.30 - 21.00 Mon - Fri in March and has just been increased again to an 05.30 start. Vehicle movements are regularly taking place earlier than this so I have to assume that it is only a matter of time before NYC grants a further extension if IML were to apply for another CLEUD.

 

What sanction does NYC have that could be applied in the event of proven breaches of planning conditions?

 

Chris Hamlin, Brigit Hannigan and others – local residents

 

"Ian Mosey Ltd. is now operating - unchecked - on an industrial scale.  Lorries often now begin travelling through Oswaldkirk village from 3.30am weekdays and can still be running at 10.00pm at night.  Sundays and Bank Holidays also.

 

The LPA appears incapable of enforcing any of the movement or production restrictions previously imposed on the company.  In allowing the latest extension to Ian Mosey's operating hours - already breached - they also seem to have abandoned their previous commitment in the first CLEUD application to "protect those living in the locality from the harm which could arise as a result of unrestricted HGV movements".

 

As a Traffic Regulation Order seems the only option now open to residents living on affected routes, can we count on our Councillors' backing and support in implementing this?"

 

The Chair thanked everyone for their questions and advised that the following response, provided by the Planning and Development Manager (Ryedale area), would address matters raised.

 

Response - Planning and Development Manager (Ryedale area)

 

Thank you for your questions. The questions raise a number of issues which I will respond to. These relate to:The lack of action/ apparent lack of action by the planning department to investigate breaches and take enforcement action.

 

·         The Lawful Development Certificate process

·         The options available to protect the amenities of residents.

The Council has acted on complaints that it has received. However, there is a context which has influenced the actions taken.

 

Prior to the company submitting the first CLEUD application, the Council had received two planning enforcement complaints. One in March 2012 and the other in August 2020. The first complaint was investigated and the file closed to be reopened in the event of further complaints of breaches of control.  The second complaint was received eight years later. The case was set up and the company was contacted and provided some explanation in response to alleged concerns. In the absence of further complaints, this remained as an open enforcement case when the first Lawful Development Certificate application (CLEUD) was submitted in December 2021. To that point these were the only complaints that were received as planning enforcement complaints by the Council and logged on the planning enforcement file.

Once the first CLEUD was received and the scale of breaches became known, the level of enforcement complaints increased considerably. These, together with the evidence provided as part of the CLEUD applications, have been used to justify the Council starting formal enforcement proceedings.

 

A Certificate of Lawfulness is a statutory document certifying the lawfulness of operations or the use of land and an application for a certificate can only be determined by the Local Planning Authority on the basis of the lawful position. In planning, once the time period for taking enforcement action has expired, a breach of planning control becomes lawful. For a breach of a planning condition this is a period of ten years beginning with the date of the breach.

 

In determining the first CLEUD, the LPA took the view that there was sufficient evidence to demonstrate that vehicle movements within specific periods of time were lawful. It did not grant a certificate for unrestricted vehicle movements which the applicant had sought. The decision to grant a certificate was made on the basis of the lawful positon. A CLEUD is not a planning application and the Council cannot determine a CLEUD on the basis of planning merits.

 

The second CLEUD application sought to evidence that an additional hourly period was lawful. It did not rely on evidence from 2011 but evidence for the ten-year period June 2013 – June 2023. In making the second CLEUD, the applicant challenged the Councils approach to assessing the continuity of the breach which applied the same factors to a half hour period in the morning to assessing breaches over whole hours. This is a valid and reasonable point which the Council has had to address as it determined the second CLEUD application. This is also a key reason why the lawful position has changed since the first CLEUD decision was issued in March 2023.

The Planning Department was not unwilling to commence enforcement action in the fifteen-week period between the determination of the first CLEUD and the submission of the second. It took legal advice in relation to planning enforcement from the Councils legal team and a planning barrister which included advice in relation to the form and content of an Enforcement report and a draft Enforcement Notice. A draft enforcement report recommending enforcement action and draft Enforcement Notice were prepared following a series of discussions within this period. The Council was not in a position to prepare and serve the notice any earlier. The second CLEUD was submitted just before the Council had the opportunity to serve the notice. The Council’s barrister advised that the second CLEUD application should be determined before formal enforcement action was taken.

 

The Council does not believe that it is powerless in respect of the breach of planning control. Planning Enforcement action remains an important way in which it can seek compliance with lawful hours of operation in order to protect amenity. An Enforcement Notice was issued on 26 September and will come into effect on 31 October 2023. Local Communities can and should continue to report any continued breaches.

 

The Planning Enforcement Notice will ‘stop the clock’ in terms of a rolling ten-year immunity period. The applicant has the right of appeal and an appeal must be lodged with the Planning Inspectorate before the date on which the notice is effective.  It should be noted that if an appeal is made, compliance with the planning enforcement notice is held in abeyance pending the outcome of the appeal.

 

In the event that an appeal is not made or an appeal is dismissed and the notice upheld, failure to comply with the notice would be a criminal offence and can lead to prosecution in the courts.

 

In respect of concerns relating to capacity at the mill (and the frequency and volume of associated vehicle movements) the LPA has some control over the expansion of the mill if continued expansion involves development. Local communities will be able to submit views on any planning applications for future development at the site.

Councillors cannot commit to supporting Traffic Regulation Order. Class B roads are naturally expected to carry a significant proportion of heavy traffic and any HGV ban on a Class B road would inevitably divert traffic onto smaller, less suitable rural roads.