Summary: Mr D complains the Council has failed to properly investigate and take enforcement action for breaches of planning control and noise nuisance caused a boating company. The Ombudsman has found evidence of delay by the Council. He has upheld the complaint and completed the investigation because the Council agrees to the recommended actions.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council has failed to properly investigate and take enforcement action for breaches of planning control and noise nuisance caused by a boating company.

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What I have investigated

2. I am looking at events from December 2017 onwards. I explain below the parts of the complaint I am not investigating.

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The Ombudsman’s role and powers

3. The Ombudsman cannot investigate late complaints unless he decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
4. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
5. The Ombudsman must consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I have considered the information provided by Mr D. I asked the Council questions and carefully examined its response and supporting evidence.
8. I shared my draft decision with both parties.

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What I found

What happened

Background

9. Prior to December 2017 Mr D and other residents had complained to the Council about issues with a boating company including noise nuisance and possible breaches of planning control.
10. In October 2017, the Environmental Health Team carried out noise monitoring at the site over a two-day period. The Officer did not witness a noise nuisance being caused by the company’s boats.

Events I have investigated

11. On 1 December 2017, the Council met with residents, the Canal River Trust (who have a number of responsibilities regarding the watercourse), the local MP and the Environment Agency. It was noted that planning enforcement was being considered by the Council for unauthorised clearance on land within a conservation area. The Council confirmed it had not found a noise nuisance but residents could submit noise logs for it to consider.
12. On 16 February 2018 residents met and noted they had given logs to the Council relating to a funeral boat operating on the canal. They were also concerned too many people were allowed on the vehicle. The Council agreed to review the Certificate of Lawful Use for the company including operational hours and the number of powered boats allowed. The next day Environmental Health carried out a further noise monitoring visit and again noted no evidence of a noise nuisance caused by the funeral boat. On 20 February, the Council held an internal meeting to discuss the case, I have no note of what was agreed. That same day the Council emailed the boat company asking to discuss complaints.
13. On 27 February, the Council met with the Canal River Trust to discuss responsibilities. A Planning Officer noted they had reminded the boat company about permitted operating hours (11am to 6pm) because there was “some evidence” this was not being complied with. The Council again confirmed there was no statutory noise nuisance caused by the funeral boat. Also, that month and in early March the Council carried out a litter survey. It found some waste linked to the boating company but it could not be considered “to be singularly the cause of any detrimental impacts on those in the locality”. No enforcement action against the boat company was recommended. On 8 March, the Council emailed the MP with an update about its recent meeting. It would review the Certificate of Lawful Use to see if the company was breaching the terms. On 22 March, the Council wrote to the boat company to arrange a visit and met the owner at the site a week later. The owner stated he had been operating longer hours for 17 years. The Council advised he should submit of Certificate of Lawful Use.
14. At the end May residents met again. They said there were more than the permitted three powered boats and 22 non- powered boats being used by the company. There were also four residential boats without permission. The Council said it would look into both issues. The Council had no update on whether enforcement action would be taken for clearance work on the island or temporary structures on it.
15. On 4 June, a Planning Enforcement Officer wrote to the company owner about their meeting that month. They had discussed alleged breaches of the Certificate of Lawful Use including operating hours. The company owner stated he had been working this way for 17 years. As a result, the Council agreed to not take further action if he submitted a new Certificate of Lawful Use application. On 14 June, the Council emailed Mr D’s MP. It said no nuisance had been detected at the site and Planning Enforcement had found the company was operating outside permitted hours. The Council had advised the company owner to submit a new application. On 24 June Mr D emailed the Council stating the boating company was still operating outside permitted hours and set out the items residents were waiting for an update from the Council. On 18 July, a Councillor wrote to Environmental Health about the licence for the company. The Council replied the licences are not issued by the Council and the Maritime and Coastguard Agency (who were the body to investigate and enforce) had been notified about the case.
16. On 7 August Planning Enforcement carried out a further site visit and wrote to the company owner two days later. It confirmed they had discussed a tent erected by the owner in a conservation area which should be removed. Any further works to trees in that site would need permission from the Council. Later that month the Council received an application for a revised Certificate of Lawful Use from the owner to operate between nine am and six pm because he had done so for more than ten years. On 13 August, a Planning Enforcement Officer visited the site to check the conservation area and boat numbers. On 24 August, the Council approved the new Certificate of Lawful use.
17. On 6 November, the Council wrote to the MP again. It confirmed there had been a breach of operating hours. The owner had applied for a Certificate of Established Use and this had been granted. The activity had been ongoing for a significant time and was therefore immune from prosecution. The Council said there were more boats on site than permitted but this included boats that were essentially scrap. The same of number of boats had been in use for some time and there was no “material change”. The Council could not take formal action because of this. It would ask the owner to remove the scrap boats. In respect of the conservation area land, some trees had been cleared and the Council had told the owner to notify it in future. There was a shed and a tent in place, as these were not permanent structures they did not require planning permission and there was no breach of planning control. Regarding noise problems the Council reiterated it had no legal option to assess statutory noise nuisance from a boat.
18. The Council subsequently says it checked with the Council Tax Team who found only one residential boat and the occupants of other boats stated they were not permanent residents. In May 2019, a Planning Enforcement Officer visited the site and found no additional residential boats.
19. Also in May Mr D lodged new complaints with the Council about the boat company. He sent the Council evidence of excess numbers of people using the funeral boat. The Council responded in June. It said Mr D’s photographs of the funeral boat was evidence of a planning breach and the Council would write to the company that it had “irrefutable evidence of a breach of planning control”. If the Council witnessed a further breach it would look to serve a breach of conditions notice. In July, the Council confirmed to me that it had considered whether any enforcement could be taken regarding passenger numbers on the funeral boat. Whilst the Certificate of Lawful Use did refer to passenger numbers it concluded it was not expedient to take enforcement action. That was partly because the issue fell to the Maritime and Coastguard Agency to enforce.

What should have happened

Noise nuisance

20. The Council’s Environmental Health Team can consider complaints about alleged statutory noise nuisance. However, it cannot investigate noise nuisance caused by boats. That is because the legislation relating to statutory noise nuisance (the Environmental Protection Act 1990) only allows a council to investigate noise from a “premises” or from a vehicle “in a street”. This does not cover boats.
21. The Council says it can consider if a business is causing a noise nuisance. In order to assess if there is a noise nuisance the Council will visit the site and witness activity. An Officer will use their professional judgement to assess if the noise constitutes a statutory nuisance taking account of the type of noise, the location, timings, etc. If the Council do not witness a statutory noise nuisance it is not obliged to take any further action.

Planning

22. The Council’s Planning Enforcement Team investigate alleged planning breaches. An Officer will assess the evidence to see if there are unauthorised works or a breach of planning conditions or agreements that have a significant impact on the local amenity. Each case is assessed on its merits taking into account whether the breach is causing significant harm and what proportionate action is required. The Council prioritises cases into high, medium and low depending on the type of activity reported and the potential harm.
23. If the Council does not find evidence of a planning breach it will close its investigation. If it does find a breach it will usually seek to work with the site owner to negotiate a resolution. It only takes formal enforcement action where it is expedient to do so. The Council has to consider whether there has been a “material change”. It cannot take enforcement action where activity has gone on at the same level for a significant period, usually 10 years. That activity/ use of land then becomes immune from enforcement action. The owner can apply to the Council for a Certificate of Lawful Use to formalise the understanding that the activity is immune.
24. The Maritime and Coastguard Agency is a Government Agency that has the remit to investigate and enforce issues relating to licences for a river craft. The Council would expect that Agency to consider such issues because it has enforcement powers.

Was there fault by the Council

25. I have found some evidence of fault by the Council.
26. Mr D says the Council failed to investigate his concerns about excess numbers of people using the funeral boat. Residents clearly told the Council about this in February 2018. I have seen no evidence of the Council investigating this matter. In an email to Mr D in June 2019 the Council said it had taken on the issue after the Canal River Trust had decided not to pursue it. I have seen no evidence of when this happened or proof of the Council liaising with residents to gather evidence of a breach. It could easily have taken this forward at the meetings with residents or the MP. Instead it fell to Mr D to take the initiative and provide this evidence to the Council in May 2019. In addition, the Council should have explained to him that it whilst it could consider if there was a breach of the Certificate of Lawful Use the matter was primarily for the Maritime and Coastguard Agency to look at the key parts of his complaint: it failed to do so.
27. In respect of the recent decision by the Council to not take enforcement action, about the funeral boat and a possible breach of the Certificate of Lawful Use, that is a decision the Council is entitled to make. It is not for the Ombudsman to say whether that decision is right or wrong because the Council considered the matter in line with procedures in 2019. However, I do note the letter to Mr D in June 2019 would have unfairly raised his expectations about what action the Council might take. The Council could have explained at that stage about enforcement action being discretionary and about the Maritime and Coastguard Agency’s role.
28. Mr D refers to the Council not taking enforcement action when the company owner erected structures and cleared trees from a conservation area. The Council investigated the allegations in line with procedures and found no breach of planning control which it set out in its November 2018 letter to the MP. I do not see any procedural fault leading to how decisions were reached. However, I do note the Council took too long to investigate this issue. It said it was considering it in December 2017 but took eight months before it spoke to the company owner and inspected the site. That delay is not acceptable.
29. Mr D complains the company has more than the permitted number of boats on the site. There is some fault by the Council because it told Mr D’s MP in November 2018 it would ask the company to remove scrap boats from the area. However, I have seen no evidence from the Council to show it followed up on this point in a timely manner or whether it checked if the scrapped items have gone. The Council should ensure it follows through on this point.
30. In respect of the number of boats in use at the site the Council did investigate this in line with procedures. It found that whilst numbers were higher than permitted there had been no material change which meant it could not take enforcement action. That was a decision the Council was entitled to take at the time. The Ombudsman will not question the merits of decisions taken without fault.
31. Mr D also complains about noise caused by boats. The Council has correctly told him that it is restricted in what noise it can consider. Legislation does not allow it to investigate noise from a boat in the same way as noise from a house for example. The evidence shows me the Council did investigate the noise issues that fell within its remit and carried out monitoring in 2018 in line with its policy and procedures. The Council did not find evidence of a noise nuisance at that time and so had no grounds to take further action.
32. Mr D says the Council should have taken action about an excess number of residential boats. There was delay by the Council. It accepts in its recent contact with Mr D that it has taken over 18 months to investigate and it has only recently passed the case to its Planning Team to formally consider. The Council says it has had a lack of resources but that does not lessen the fault identified or the impact on Mr D.

Did the fault cause an injustice

33. The Council delayed taking forward investigations on a number of points. That meant Mr D has had to wait longer than acceptable for his concerns to be properly considered. I cannot say what the outcome of the ongoing Council investigations will be but Mr D should have received a better standard of service.

Agreed action

34. I see the Council apologised to Mr D in its June 2019 email about the 18-month delay investigating the number of passengers on the funeral boat. However, I also note this fault was not picked up in the Council’s response to my enquiries. The Council has agreed to the following recommendations to remedy the injustice caused to Mr D:
• Issue Mr D a full letter of apology for the faults identified in this statement;
• Give an undertaking to keep Mr D updated about any ongoing investigations into his reports at reasonable intervals;
• Confirm to the Ombudsman what actions have been taken to prevent further delays to service users in the future.

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Final decision

35. I have upheld the complaint and completed the investigation.

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Parts of the complaint that I did not investigate

36. I am not looking at events prior to December 2017 because the Ombudsman expects a complaint to be made within 12 months of the person being aware of the problem.
37. In addition, Mr D continues to raise new complaints with the Council, for example in May 2019 about operating hours at the site. Those matters are not subject to investigation by me because they have been lodged with the Council since I started my consideration of the case and are open cases with the Council.

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Investigator's decision on behalf of the Ombudsman