Summary: The Ombudsman found no fault by the Council on Mr Q’s complaint of it insisting over 3 years he apply for an environmental permit for his business despite him disputing the need for one. Two periods of delay found were not the Council’s fault. The Council told Mr Q in August 2017 he did not need to apply for a permit while it reviewed guidance. This meant he was at no risk of prosecution for not having one during this period.

The complaint

1. Mr P complains on behalf of Mr Q that the Council insisted over a period of 3 years, that he get an environmental permit for his business despite him disputing the need to do so, before finally accepting it was not required after all; as a result, he was put to considerable time and expense dealing with the Council about it.

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What I have investigated

2. Mr P complained to us in June 2019. Usually, we would only investigate events from June 2018 as any earlier part is a ‘late’ complaint. As the matter complained about has been part of a continuous process, I exercised discretion to investigate the complaint from when it first arose in May 2017.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also 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, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered all the information Mr P provided and the Council’s response to my enquiries, a copy of which I sent him. I sent Mr P and the Council a copy of my initial draft decision. Having considered their responses, and the further information received from the Council, I revised my view on the complaint. I sent a copy of my revised draft decision to Mr P and the Council. I considered their responses.

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What I found

7. Mr Q runs a timber business and was told by the Council 3 years ago he needed an environmental permit. This type of permit is needed for certain regulated facilities having a potential environmental impact. Mr Q is unhappy it took so long for the Council to finally accept he did not need one, which is what he argued throughout. Over this period, Mr Q found his experience with the Council frustrating. In addition, he incurred legal and management costs arguing his position.
8. The disagreement about the need for a permit arose over the interpretation of national guidance and the law when it issued its own guidance.
9. The following are the key events:
1. The Industrial Emissions Directive 201/75/EU introduced a permitting regime for industrial processes. The key paragraph (paragraph 6.10 of Annex 1) referred to a ‘production capacity exceeding 75m3 per day’. The Directive, and 2 relevant regulations, gave no interpretation of this phrase.
2. In September 2013, the government produced Sector Guidance Note SG11 (draft): ‘Guidance for Wood Products Preservation with Chemicals’. This gave some clarification about ‘production capacity’ which it said is determined by ‘potential output which is limited only by technical or legal restrictions’. (paragraph 1.18) It remained as a draft and was not published as official guidance. The Council noted the draft contained some contradictions about actual output, rather than potential output. The key issue, therefore, was how to interpret potential production capacity.
3. The Wood Preservation Local Authority Group (the Group) was set up, but not by the Council, to consider these issues. The Group included members of various councils with timber treatment businesses in their area, and officers from the Department for Environment, Food and Rural Affairs, one of whom had written the government draft and other guidance. While the Council was not a member, it had access to members. The Council agreed to follow the process the Group suggested to calculate production capacity which included looking at the theoretical capacity of the site, not what was produced each day.
4. In April 2016, the Council decided it best practice to produce its own policy setting out how it would interpret ‘potential capacity’. After discussion between officers and the legal team, the Council agreed its policy, ‘Public Health Protection Unit Policy on the implementation of the Industrial Emissions Directive with regard to Timber processes’.
5. In May 2017, the legal team received instructions about considering prosecutions under the regulations which included looking at the Council’s policy and draft guidance.
6. The following month the legal team began to review the Council’s policy and agreed to meet operators’ representatives, including Mr P.
7. In July, the legal team suggested a review and revision of the policy. The Council kept Mr P informed.
8. The Council wrote to Mr P the following month confirming it did not require any operator to apply for a permit during the review.
9. In September, the Council’s legal team produced a draft of the Technical Guidance note to replace the policy. It sent this to the public protection team which suggested amendments to it in November. Again, the Council sent Mr P an update saying the process was taking longer than first thought because of the amendments.
10. In December, the Council again updated Mr P when a key officer involved became ill. It explained this officer was one of the authors of the revised guidance.
11. In February 2018, legal sent the public protection team a copy of the draft note and the Council consulted on it in March. Mr P sent comments on the draft the following month.
12. The Council signed off the final version of the note in May and sent a copy to Mr P.
13. The following month the Council wrote to Mr Q asking for information to allow an assessment of the site’s capacity under the new Technical Guidance note. The Council received a completed questionnaire in response.
14. In October, the Council contacted Mr Q saying it needed further information. Officers needed to visit the site and asked about arrangements to visit. Mr P replied asking for the reason for a visit. Officers replied and towards the end of the month, Mr P confirmed the date for a visit which was carried out the following month.
15. In December, following a site visit, the Council wrote to Mr P confirming Mr Q did not need a permit.
10. The Council explained during the review period, operators were told it did not intend to proceed with enforcement action and they needed to take no further action until completion of the review. As a result, the Council believes there was no need for Mr Q to incur legal and other costs until the Council decided how to proceed.
11. The Council accepts it took just over 3 years from contact with Mr Q for it to reach the position that he did not need a permit.

Analysis

12. This was a highly technical area in which the Council decided it needed to produce its own guidance for its public protection team. The government produced only draft guidance on the directive which, as the Council noted, appeared to contain some contradictions.
13. The Council introduced its policy. When the public protection team asked the legal team to consider some prosecutions, the Council identified the need to review its policy about a year after its introduction. This was in May 2017.
14. The Council carried out consultation during the review process. In August, it told Mr P it did not require any operator to apply for a permit during this process. The obvious inference from this is it would not prosecute operators who failed to apply for the permit during this period.
15. While Mr Q may have had concerns about the Council taking enforcement action against him before it gave him the assurance in August, I note it had not done so. Had it done so, Mr Q could have defended any action by arguing the Council starting a review of its own guidance in May meant he may, or may not, need a permit by the end of that process.
16. In my initial draft decision, I found two periods of delay. The Council responded to the draft providing further information which I considered. Having done so, I now find no fault because of delay for the following reasons:
1. November 2017 to February 2018: The Council explained that during this period, the key officer became ill in November. At the start of December, it sent an email to Mr P explaining this and how it expected the officer to return to work within the week, but this was unlikely to happen until the new year. The officer was one of the main authors of the revised guidance. The Council considered it needed the officer’s knowledge and previous involvement to reach a conclusion.

The officer was ill through November to 14 December. The officer returned for 2 days before going on booked annual leave over the Christmas period. The officer was due to return on 3 January 2018. Two days after returning, the officer had a pre-arranged operation which meant 2 weeks absence. The officer returned to work on 23 January after an unrelated bout of illness. When the officer returned to a backlog of work, priority was given to the guidance.

While I appreciate this period of delay caused Mr Q some frustration, in the circumstances I am not satisfied it amounted to fault. It made sense for this officer to complete the necessary work, and the unavoidable delay this entailed, rather than pass it to another officer who would be unlikely to have the same knowledge of expertise. I also note the Council had explained to Mr P there was a problem when this officer became ill.

2. June and October 2018: The Council explained officers were dealing with 4 separate sites when considering the issue of production capacity. It set a deadline of mid-July for the sites to return completed information requests it sent out in June. The officer intended to assess the replies at the same time to ensure consistency with the process. The Council employed the officer part time but, the officer also had annual leave booked over 3 weeks during July/August. One of the sites only returned the information on 21 July

Towards the end of August, officers were told the Scottish Environmental Protection Agency had issued technical guidance about capacity and thresholds. Officers needed further time to review it to see whether the Council’s own guidance/procedures needed amending. When this was done, interim assessments were carried out by mid-September for all 4 sites. These found officers needed further information from all the sites to complete the assessment. Discussions about how best to deal with it concluded with an agreement to visit the site.

On balance, I am not satisfied the delay identified in my initial draft decision for this period amounts to fault. One of the sites was slow to return the requested information and the officer was on leave during part of the summer holiday period. Officers also had to consider the guidance issued towards the end of August by the Scottish Environmental Protection Agency. The issue officers considered was complicated and they had to ensure of interpreting the law correctly.

17. Throughout these periods, there was little risk of the Council taking enforcement action against Mr Q. This is because the Council wanted to visit to assess the premises to see whether he needed to apply for a permit or not. The outcome of the assessment was Mr Q did not need a permit. I note Mr Q had never applied for, or been issued, with a permit which means he had not been put to the unnecessary expense of getting one. In addition, the Council had told him in August 2017 he did not need to apply for one.
18. I am not satisfied it was fault for the Council to have a different view on whether Mr Q needed to have a permit or not. Ultimately, it would have been for the courts to interpret the law and decide whether he needed one. When the Council threatened Mr Q with legal action, he like many others similarly threatened with such action, had several options:

• He could have got a permit and argued for a refund when the Council carried out the review and decided one was not necessary;
• He could have let the Council take him to court and ask the court to decide whose interpretation was correct; or
• In addition, or instead of the above options, he could have decided to pay for legal advice. This was the option Mr Q chose to take.

19. Mr P, in his response to my revised draft decision, argued the Council should reimburse Mr Q’s legal costs. The Ombudsman only provides a remedy where injustice is caused from identified fault. In Mr Q’s complaint, I found no evidence of fault. This means there is no injustice to him which needs remedying.

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Final decision

20. The Ombudsman found no fault on the complaint against the Council made by Mr P on behalf of Mr Q.

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Investigator's decision on behalf of the Ombudsman