The Ombudsman's final decision:
Summary: the complainant, Mr X complained the Council failed to properly exercise its enforcement powers to prevent and remove mud and dust collecting on the public highway. The Council says it considered its powers, investigated the complaints, and issued a statutory notice. It accepts some delay arose due to Covid-19. We found the Council considered and exercised its enforcement powers without fault.
- The complainant whom I shall refer to as Mr X complained the Council failed to properly exercise its legal powers to control the deposit of mud on local roads.
- Mr X says the resulting mud and dust have created a health and safety issue for residents and negatively impacted on the amenity of the area. Mr X wants the Council to increase its road cleansing and act to prevent recurrence by keeping the roads clean.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If 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)
How I considered this complaint
- In considering this complaint I have:
- Contacted Mr X and read the information presented with his complaint;
- Put enquiries to the Council and reviewed its responses;
- Researched the relevant law and guidance.
What I found
The Law and guidance
- The Highways Act 1980 gives councils discretionary powers to prevent and clear up mud or refuse from the highway. That is a highway maintainable at public expense not a private road. The Act grants councils the power to issue a notice requiring the removal of any dangerous object or cleansing the highway.
- Under the Town and Country Planning Act 1990 councils may grant planning permission subject to conditions controlling the use of land. These may include plans to mitigate any dust or mud falling on roadways.
- Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public. Government guidance encourages councils to resolve issues through negotiation and speaking with developers.
- Government guidance says: “Effective enforcement is important as a means of upholding public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)
- As well as these powers the Council has powers under the Environmental Protection Act 1990 (EPA) This places councils under a duty to take reasonable steps to investigate potential ‘statutory nuisances.’
- Once the Council has gathered any evidence of a potential statutory nuisance, the Council’s environmental health officers will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officers will use their professional judgement to decide whether a statutory nuisance exists and whether to serve a formal notice.
- Mr X lives close to an industrial estate (Estate Q) which is home to several industrial businesses including Companies Y, Z and R. These businesses are subject to planning conditions attached to the planning permissions controlling the use of their property. The conditions aim to prevent unacceptable impacts from the businesses on the amenity of the area. They include duties to provide dust and mud prevention plans and equipment.
- Access to Estate Q is over a public highway (the highway) leading to a private access road.
- The Council says there have been periodic complaints of mud on the road leading to the estate since 2010. Following cleansing commissioned by the Council in response to complaints between 2018 and 2019, the Council decided to serve a Section 151 Highways Act notice on Company Y. The notice issued in November 2019 told Company Y to remove soil and refuse and prevent further deposits. It also sought to prevent mud and dust washing onto the highway, and into the sewers, or gullies. The Notice gave Company Y 28 days in which to comply.
- In response to the notice the Council says Company Y installed an active wheel wash and removed the mud from the highway. In January 2020, the Council followed up concerns about the efficiency of the wheel wash and agreed to monitor Company Y’s upgrade to the wheel washers. The Council believed this met the objectives of the Notice.
- In August 2021, the Council’s planning officers wrote to Companies Y and Z having witnessed lorries bringing mud off Estate Q contrary to planning conditions. Companies Y and Z have road sweepers available to clean up mud or dust that leaves their sites or from the vehicles from other companies on Estate Q. The Council says Companies Y and Z’s sweepers sweep the private road at least daily. Cleansing the private road helps reduce mud, dust, and refuse from reaching the highway. The Council says it had no evidence of Company R breaching conditions, so it continued liaison with Companies Y and Z.
- The Council says that both planning and environmental health officers have witnessed a watery film on the highway several times. However, this they say is not actionable under their powers. Some of the deposits shown in photographs Mr X shared with the Council it says also fall into this category. Other photographs show mud or deposits the Council says if witnessed by an officer would meet the test for enforcement. The officers would then have to consider if the circumstances met the expediency test for using their enforcement powers.
- In response to my enquiries the Council says its powers under the Highway Act and Town and Country Planning Act provide the most suitable means of controlling dust or mud on the road. The Council says its powers under the EPA are less helpful because of the multiple sources of dust on the highway. That presents difficulties in identifying the person or company responsible.
- Records show that between January 2019 and July 2021 the Council’s minerals and waste planning officers investigated four potential breaches of planning conditions. The conditions sought to prevent deposits of mud on the private road and highway. Where the officers’ found a breach they sought a resolution and shared information with the Council’s highway cleansing section. The Council increased the number of times it swept the highway. The Council decided the resulting improvement to the highway meant it did not need to exercise its planning enforcement powers further.
- The Council says the circumstances at the site mean the highway would benefit from a four to six weekly sweep cycle. The Council’s current cycle is eight to twelve weeks. The Council says it undertakes an extra sweep between the programmed sweeps. The Council undertakes a full manual clean on a lesser programme. During the Covid-19 pandemic the Council had to use staff for different work. Staff absences also reduced the capacity for carrying out the usual road sweeping cycle. Therefore, the Council says it accepts it did not carry out the full cycle of cleansing in 2020. Changes to the Cleaner Neighbourhood Teams in July 2021 resulted in further disruption to the service but the Council says it continued cleansing. The Council has started a trial with an extra sweep which it will monitor for three months to see if this improves the conditions on the highway.
Analysis – was there fault leading to injustice?
- My role is to consider how the Council decided whether to exercise its discretionary powers. If it failed to properly consider the powers available to it, I must decide what, if any, injustice that caused and what the Council should do to put that right. There is no dispute the highway and private road suffer from muddy and dusty conditions caused by the businesses on Estate Q. I must decide if the Council properly considered its powers to address those conditions.
- The Highway Act and Town and Country Planning Act provide separate powers of enforcement. Each Act has separate legal frameworks setting the tests for using the powers they grant. We expect councils to work corporately and for officers in different sections to liaise with one another to decide which of the powers will achieve their objective. They should share information so all officers may exercise their powers to the best effect.
- The Council is responsible for the highway. Planning conditions control the private road leading to the highway. These conditions say the companies must prevent mud falling on the road and to clean it up when it does. The conditions require the companies to have dust suppression and cleansing plans and equipment.
- Enforcement is discretionary and so therefore a breach will not automatically result in enforcement action. The Council must decide in response to the harm caused what is a proportionate response. The Council’s highways section led on controlling mud on the highway and its planning enforcement team led on examining whether a company had breached any planning conditions. Where the Council found evidence of significant mud and dust on the highway it liaised with the company. It then issued a Section 151 Highways Act notice.
- The Council accepts it did not witness all the incidences of mud on the highway as photographed by Mr X. Therefore, it missed some incidences it may have otherwise pursued. The Council has committed named staff to responding to further reports of mud on the private road or highway.
- It is a matter of professional judgement whether to issue formal notices and what action may achieve the objective of removing mud from the private road and highway. Both planning and highways officers have liaised with each other and the highway cleansing section to use what they believe are the most effective powers available.
- The Council could not avoid some disruption to the cleansing programme during the Covid-19 pandemic. Therefore, I find the Council not at fault for those missed sweeps. The current trial cleansing programme shows the Council’s commitment to regular cleansing using the most effective cycle.
- The Council’s officers liaised with each other when deciding which powers would best achieve the objective of reducing mud on the highway. They followed the usual procedure for investigation and had before them all relevant information including Mr X’s concerns when deciding the Council’s response. Therefore, I find the Council acted without fault.
- In completing my investigation, I find the Council acted without fault in considering and exercising its enforcement powers.
Investigator's decision on behalf of the Ombudsman