The Ombudsman's final decision:
Summary: There was no fault causing injustice in the Council’s planning enforcement investigation into development near Ms X’s home. However, the Council avoidably delayed contacting Ms X in response to her report of nuisance at the development site. The Council’s apology suitably addressed the distress caused to Ms X because of the delay. The Council’s following nuisance investigation, and confirmation it would respond to Ms X’s further nuisance reports, was a reasonable and proportionate way to address Ms X’s continuing concerns.
- Ms X says the Council, as local planning authority, failed to consider the impact of development on her home before granting planning permission. And, the Council then failed to take enforcement action against breaches of planning control on the development site.
- Ms X also says the Council, as environmental health authority, delayed and then failed to deal with pollution and nuisance problems on the development site.
- Ms X says the Council’s failures to deal properly with the development site have badly affected her and her home. This is because the layout and use of the development has damaged her property; denied her full access to her home; and made use of her home unsafe and created fire and health risks and pollution and nuisance hazards.
- Ms X wants the Council to change the layout of the development and so remove fire and health risks and to allow her full access to and the safe use of her home. Ms X also wants the Council to properly investigate and address her pollution and nuisance concerns.
What I have investigated
- I have investigated Ms X’s concerns about how the Council has handled planning enforcement and nuisance/pollution matters on the development site. I have not investigated Ms X’s concerns about the Council’s grant of planning permission for the development. And, I have not investigated Ms X’s complaints where they concern her rights and responsibilities as an owner/occupier of private property. My reasons for not investigating appear at paragraphs 58 to 61 of the statement.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
- 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)
How I considered this complaint
- I have:
- considered Ms X’s written complaint and supporting papers;
- offered to talk to Ms X about the complaint;
- asked for and considered the Council’s comments and supporting papers about the complaint;
- shared the Council’s comments and some supporting papers with Ms X; and
- shared a draft of this statement with Ms X and the Council and considered their responses.
What I found
- Most development needs planning permission from the local council. If development takes place without the necessary permission or without complying with conditions attached to the permission, there will be a breach of planning control.
- Councils should investigate reports of breaches of planning control, but they do not have to act against every breach they find. The law gives councils discretion to act and says they may do so if they are satisfied it is ‘expedient’. The Government’s National Planning Policy Framework (NPPF) says:
“Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate.”
- During events in this complaint, the Council had an Enforcement Policy (‘the Plan’), which set out how it ranked reported breaches as high, medium or low priority. The Plan aimed to investigate reported breaches and decide if enforcement action was expedient within 21 days. The Plan said the Council would update people reporting a breach after the enforcement investigation. The Plan also said the Council would tell people if it could not deal with issues they raised under planning law.
- Most building work needs approval under the Building Regulations (‘the Rules’). The Rules set standards for the design and construction of buildings to ensure health and safety for people in and about those buildings. The Government has issued ‘approved documents’ giving examples of how to meet the Rules but, builders do not have to follow these examples.
- Approved Document H6 deals with solid waste storage. When the development was built, it said there should be “adequate provision” for storage of solid waste and “adequate means of access” to it and to a collection point. The guidance notes said H6 would be met if the solid waste storage was “designed and sited so as not to be prejudicial to health”. For non-domestic developments, the notes said it was “essential” to consult the waste collection authority on many points including hygiene arrangements and fire hazards and protection measures. And, for domestic developments:
“external storage areas for waste containers should be away from windows and ventilators and preferably be in shade or under shelter. Storage areas should not interfere with pedestrian or vehicle access to buildings.”
- People may apply to either the local council or an independent building inspector for approval under the Rules. The primary responsibility for compliance with the Rules rests with the landowner, the builder and any other agent employed to carry out the building work.
- Councils must take reasonable steps to investigate peoples’ reports of problems that may be a statutory nuisance. Examples of problems that may be a statutory nuisance are:
- any property in such a state as to be prejudicial to health or a nuisance;
- any accumulation or deposit which is prejudicial to health or a nuisance; and
- any smells arising on and any insects coming from industrial, trade or business property and being prejudicial to health or a nuisance.
- To be a statutory nuisance, the problem must:
- unreasonably and substantially interfere with the use or enjoyment of a home or other property; or
- injure health or be likely to injure health.
A summary of what happened
- Over 10 years ago, the Council granted planning permission for the development Ms X complains about. Work started on the development site (‘the Site’) a few years after the grant of planning permission. But it was several years before substantive building work took place. The developer used an ‘approved inspector’ to deal with the Rules for the Site. Ms X then moved to her home, which is next to the Site.
- About 15 months after Ms X moved in, the development was nearing completion. The developer then built an outbuilding on the Site (‘the Outbuilding’). Ms X contacted the Council and said the Outbuilding was not built in line with the development plans. Ms X also complained about use of part of the Site (‘the Storage Area’). Ms X said the development plans were inadequate as they did not properly show her home and the development obstructed her legal access and rights to maintain her home. Ms X also said her home had been damaged during the building work.
- In the weeks that followed, a Council planning enforcement officer visited the Site and met with a representative of the developer. Ms X saw the meeting take place and went to join in, being upset the Council had not asked her to attend. The Council’s written responses to Ms X said, in summary:
- the planning permission could no longer be legally challenged;
- the planning application had not needed a specific risk assessment about placement of the Storage Area;
- the Storage Area was in the position shown on the development plans so there was no breach of planning control;
- Ms X should report any nuisance caused by use of the Storage Area to its community enforcement team for investigation;
- the Outbuilding was not built in line with the development plans, but it was not expedient to take enforcement action;
- the grant of planning permission did not affect peoples’ legal rights; and
- Ms X could seek legal advice about her property rights and damage caused by the building work.
The Council, as local planning authority, signposted Ms X to the Ombudsman.
- About two months later, Ms X reported problems, including smells and pests, with use of the Storage Area to the Council’s community enforcement team (‘the CET’). A few days later, a Council officer (‘Officer E’) asked waste collection colleagues to remove items from the Storage Area as soon as possible. After receiving chaser emails from Ms X and her local councillor, the Council’s records show Officer E contacted Ms X over two weeks after she had reported problems with the Storage Area. (Ms X says this contact did not take place.) Officer E prepared to visit the Site a few days later. Ms X’s emails to the CET also repeated the concerns she had raised with the Council’s planning team about the development.
- Meanwhile, Officer E had contacted the developer. The developer was not using the Council’s waste collection service but a private contractor to remove waste from the Storage Area. Officer E then visited the Site. During the visit, Ms X spoke to Officer E. They have different recollections of their talk, including whether Officer E was asked, and or refused, to assess matters from inside Ms X’s home. Later that day, Officer E wrote to Ms X, apologising for the delay in responding to her concerns about waste management arrangements for the development. Officer E said the developer had explained there had been a problem, now resolved, with the private waste contractor. And, the contactor would be removing waste from the Storage Area the next day and then each week. (Ms X says collections are fortnightly.)
- Ms X replied saying Officer E had not addressed the failure to build the Storage Area in line with the development plans. Ms X also said the problem with the Storage Area was not a ‘one off’ as bad smells and pests were a continuing problem at and around the Storage Area. Officer E replied by email, copying it to planning colleagues, and said construction of the Storage Area would be a planning matter. Officer E also said, “at the time of my visit…whilst I did not detect any odour, some flies were being attracted…” to the Storage Area. The Council’s planning team replied to Officer E and Ms X saying the development information did not suggest the Storage Area would be enclosed.
- Over the next five days, Ms X emailed the Council questioning how Officer E could not detect any odour as this was “incorrect”. Ms X said “the odour was extremely strong and overwhelming” and many local people and her councillor could confirm this. Ms X asked why Officer E had refused to enter her home to see how flies came in from the Storage Area. Ms X also questioned Officer E’s professional judgement and expertise. Ms X ‘insisted’ that another officer deal with her concerns or go with Officer E on future visits. Ms X said Officer E’s ‘dismissal’ of her concerns discredited her views, challenged her integrity and caused her personal offence. Ms X repeated her concerns about the position of the Storage Area being a health, safety and fire hazard and about it not being enclosed.
- Ms X then contacted the Council saying the “stench” from the Storage Area was returning. Ms X repeated her earlier concerns about the development and Officer E. Ms X also reported debris and the developer’s failure to repair access tarmac or unblock drains that she had part responsibility to maintain. Ms X said these matters added to environmental hazards on the Site. Ms X also complained about Officer E’s delay in responding to her concerns.
- The Council acknowledged Ms X’s complaint and replied a few days later to her six main points. First, the Council apologised for not meeting its 3 days response target and its delay (taking 13 working days) to contact Ms X in response to her first reporting problems with the Storage Area. The Council said it had “significant service demands and staff shortages” at the time. Second, the Council recognised Ms X disagreed with its assessment that odours during Officer E’s visit were not a statutory nuisance but stood by its assessment. Third, the Council offered to make three visits to find out if an odour nuisance existed from the Storage Area. The Council said it would assess matters from within Ms X’s home if necessary and visits would depend on officer availability and could include Officer E. Fourth, Officer E had taken “right and proper” actions in referring to the developer about use and management of the Storage Area. Fifth, Officer E had taken “right and proper” actions in referring to and updating planning colleagues about the development. Sixth, the Council said there should be no problem with the Storage Area unless a potential nuisance or pest issue arose.
- Ms X replied saying “do your 3 visits,” but repeating pests were present and other residents would send statements about the smell. Ms X asked if the Council believed residents were “all imagining an overwhelming stench”. The Council replied that it assessed nuisance “at a moment in time” and had not commented on Ms X’s or other residents’ views. Ms X said the Council had not referred to peoples’ views about the smell and so had dismissed their overwhelming and strong evidence that proved its assessment was wrong. The Council repeated it stood by Officer E’s assessment and had offered three more visits. The Council said it would take Ms X’s complaint to the second stage of its complaints procedure as it was clear she was unhappy with its first response.
- The Council sent Ms X a second response to her complaint saying, having reviewed matters, it had addressed Ms X’s concerns in its earlier response. The Council also said other peoples’ views were “helpful for context” but to take formal action for statutory nuisance, it needed its trained and experienced officers to assess matters. And, Officer E’s assessment was “at a point in time” on visiting the Site. The Council “strongly” encouraged Ms X to consider its offer of three further visits. The Council signposted Ms X to the third and final stage of its complaints procedure.
- Over the next few days, Officer E was in touch with Ms X seeking dates/times to visit to assess any nuisance smells. An email from Ms X said, “today the odour is foul”. Officer E, and another environmental health officer, went to the Site a few hours later, leaving a ‘calling card’ at Ms X’s home. Officer E then emailed Ms X saying they had viewed the Storage Area but “did not detect any odour at the time of [their] visit.” The email also said the Council would wait for Ms X to provide dates/times for a nuisance assessment from inside her home.
- About seven weeks later, Ms X emailed the Council saying she was waiting for a visit. Officer E replied, saying there had been two visits to the Site and the Council was waiting for Ms X to provide dates for a visit to her home. Ms X said the Council had agreed to make three further visits and it had failed to reply to her reports about the increased use of the Storage Area. Ms X said she did not need to be present for Council visits to the Site and it was best to visit the day before waste was removed from the Storage Area. Ms X said there was little point in visiting now given the colder weather, but she would insist the Council came to her home when temperatures increased.
- About six weeks later, Ms X wrote in detail to the Council saying it had not dealt with her concerns, which were continuing. The Council said it would consider her concerns at stage 3 of its complaints procedure and did so about two weeks’ later. The Council referred to its earlier responses and said Officer E first went to the Site to gain information and dealt with Ms X’s concerns as an “excess waste” case. The following correspondence showed that “nuisance legislation” might apply, which needed a visit to assess the issue from within Ms X’s home. It had then asked Ms X for dates/times to visit. The second visit made by two of its officers had responded to Ms X’s email earlier that day reporting smells at the Site. The Council apologised for not contacting Ms X before that second visit. The Council said it had addressed Ms X’s concerns about the position of the Storage Area in responding to her earlier planning complaint. The Council signposted Ms X to the Ombudsman.
- Over four months later and after further contact with the Council, Ms X brought both her planning and environmental health complaints to the Ombudsman.
- In responding to the Ombudsman, about planning issues, the Council said the development plans showed a brick built surround for the Storage Area. This had not been built. As the planning permission did not list the development plans, the Council considered it could not take enforcement action to make the developer build a brick surround. The Council confirmed the boundary gate of concern to Ms X did not breach planning control as its position and orientation on the Site was as shown in the development plans. The Council also said it could not control the number of waste bins on the Site using its planning powers.
- In responding to environmental health issues, the Council said it received 268 new complaints in the month Ms X reported problems with use of the Storage Area. And, at the end of that month it had 472 open complaints and 3.8 full time equivalent officers. The Council considered the ‘exceptionally hot summer was a significant reason for an extreme rise in complaints’.
- The Council confirmed it had not provided building control services for the development and did not provide its waste and recycling services. The developer had used an independent building inspector under the Rules, which included arrangements for the storage of solid waste, for the Site building works. And, the developer had private arrangements with a contractor for waste collection from the Site. The Council also confirmed it did not consider the public access road to Ms X’s home needed repairs.
- For most people, they area in which they live and work is important. I therefore recognise the strength and depth of Ms X’s views about the Council’s handling of her concerns about the Site. My role is to consider whether the Council acted with fault in responding to Ms X’s concerns. In doing so, I have taken account of all the information provided by Ms X and the Council. And yet, I have not addressed (and find no need to) each detailed point raised in their correspondence. The focus of my investigation has been the Council’s responses as both a local planning enforcement and environmental health authority to the main issues in the correspondence.
- It took the Council about eight weeks to both investigate the Site for any breaches of planning control and consider Ms X’s planning concerns under its complaints procedure. There is no evidence of any avoidable delay by the Council in responding to Ms X as local planning authority.
- The Council’s planning enforcement investigation found breaches of planning control on the Site. The breaches included changes to the Outbuilding from the development plans. The key differences between the plans and ‘as built’ Outbuilding concern the construction materials and design. The Council did not record in writing how and why it decided it was not expedient to take enforcement action against the Outbuilding. And, the officers involved in making that enforcement decision are no longer employed by the Council.
- The absence of written reasons for the enforcement decision is poor administrative practice by the Council. The Council should review its working practices to ensure it does record the reasons for its planning decisions. And yet, given the differences (materials and design) between the plans and ‘as built’ Outbuilding, the decision not to act is sustainable on planning and land use grounds. While I recognise Ms X disagrees, I also find the differences have no substantive effect on her and her home.
- Ms X’s key concern with the Outbuilding is that it has a physical impact on her home. The position of the Outbuilding within the Site is the same in the plans and ‘as built’: The Outbuilding is immediately next to Ms X’s boundary. (Ms X disagrees with the description “next”.) The Outbuilding shown in the plans is therefore likely to have had a physical impact on Ms X’s home. I do not find the design change or the reduced width of the ‘as built’ hard surface close to the Outbuilding have any direct or substantive effect on the relationship of the Outbuilding to Ms X’s boundary. Ms X’s concerns about the Outbuilding touching her home, causing damage and interfering with maintenance of her property, are land ownership issues. The Council’s planning enforcement decision does not affect Ms X’s rights as property owner or give the developer any legal right to interfere with Ms X’s home. (See also paragraphs 60 and 61.)
- The Council now also recognises the development plans showed a built frame around the Storage Area. (Although the plans do not show the frame as fully enclosed, that is, with doors or other accesses/openings.) The Council says it does not consider it can make the developer provide the frame. This is because the planning permission does not include conditions either listing the development plans and or requiring construction of the frame. So, this issue concerns the Council’s decision to grant planning permission, which I have not investigated (see paragraphs 58 and 59).
- However, Ms X’s main concern with the Storage Area is its closeness to her home. Ms X’s correspondence with the Council suggests she wants the Storage Area, whether open or part enclosed, moved to another part of the Site. This is not a result the Council can achieve using its planning enforcement powers as the Storage Area’s position is as shown on the development plans. The independent building inspector, appointed by the developer, will also have considered placement of the Storage Area (see paragraphs 13 to 15).
- Overall, I do not find the Council’s planning enforcement decisions have affected the position in which Ms X now finds herself. (Ms X strongly disagrees.)
- The Council has a three working days target for making contract in response to people reporting an environmental health problem. Here, the Council took an extra 10 working days to contact Ms X. The Council has referred to staff shortages and an ‘extreme’ rise in complaints during ‘exceptionally’ hot weather when Ms X reported problems with the Storage Area. I recognise the pressures faced by the Council. I also recognise that, given the subject matter of Ms X’s report, the added waiting time is likely to have caused Ms X distress. The Council has already apologised to Ms X for its delay in first contacting her after receiving her complaint about the Storage Area. And, after making contact, the Council took further steps to address her concerns. I find the Council’s apology a suitable and proportionate response to its delay in first contacting Ms X. (Ms X strongly disagrees.)
- Officer E then visited the Site and a discussion took place between Ms X and Officer E. The correspondence that followed shows Ms X and Officer E hold different recollections of their discussion. Differences and or misunderstandings can arise during conversations. As time passes, recollections may fade and or become fixed on some points. Without objective, independent and contemporaneous evidence, which is the case here, I cannot reach a sound evidence based view about what was said or understood at the visit.
- A key concern for Ms X is Officer E finding no statutory nuisance during the visit. I recognise Ms X, and others, have found the smell, and linked pest problem, unacceptable and continuing. And, Ms X made clear in later correspondence her disbelief that Officer E could not have found the smell unacceptable during the visit. I also recognise that Ms X found Officer E’s view questioned her, and others’, integrity. And yet, Officer E was at the Site for a short time, whereas Ms X, and other local people, will be present regularly and for long periods. Officer E reached a view based on the circumstances found at the visit. Those circumstances may have been different both before and after the visit and will have been different to those experienced by Ms X, and others, on other days. In responding to Ms X’s concerns on this issue, the Council made clear Officer E was concerned with a ‘moment in time’. I do not share Ms X’s view the Council’s assessment at that ‘moment in time’ questions her, or other’s integrity. Ms X and Officer E are entitled to hold differing views about any smell from the Storage Area at the ‘moment in time’ of the first Site visit.
- After the visit, the Council, recognising Ms X, and others, found smells and pests a continuing problem, offered three further visits to assess for a statutory nuisance. This was a reasonable, suitable and proportionate way to move forward. The Council’s offer was also in line with its nuisance ‘practice notes’ about visits and officers witnessing problems. I do not criticise the Council for wanting its officers to be satisfied about the existence of any statutory nuisance before taking formal action. If challenged, the Council would need to defend any formal abatement notice it issued and this would need evidence in court.
- The Council wrote asking Ms X to give dates/times for visits. And, Ms X told the Council it could ‘make three visits’ and suggested these be made the day before the weekly waste collections for the Site. And, Ms X later said the Council failed to do so during hot weather. In practice, the Council made one further, summer, visit, when two officers went to the Site the day Ms reported the smell was bad from the Storage Area. I do not criticise the Council for its officers visiting the Site in response to Ms X’s email. The Council wanted its officer(s) to try to witness any nuisance. And, officers were most likely to witness a nuisance if they could visit quickly after Ms X reported the smell was bad rather than making random visits.
- Having carefully considered the correspondence, taking time and with hindsight, I consider a misunderstanding arose about the three further visits. Ms X was waiting for the Council to visit and the Council was waiting to hear from Ms X with dates/times for visits. This misunderstanding about ‘triggering’ visits, was not resolved until the Council sent its stage 3 response to Ms X’s environmental health complaint. The stage 3 response ‘reminded’ Ms X its officers would try to visit as soon as possible in response to her reporting nuisance smells or pests. This misunderstanding was unfortunate, but I do not find the Council fell below acceptable administrative standards in its communications given its overall correspondence with Ms X. (Ms X strongly disagrees.)
- The Council has contacted both Ms X and the developer, twice visited the Site, and agreed to make further visits, subject to officer availability, if Ms X reports nuisance problems. These were reasonable and proportionate steps for the Council to take. I therefore find no fault in how the Council has investigated Ms X’s concerns. Unfortunately for Ms X, the Council, through its officers, has not yet witnessed a statutory nuisance and so has not taken formal action against the Site. And, without evidence of fault in how the Council has investigated Ms X’s concerns, I have no grounds to question its decision to not, yet, take formal action. (Ms X strongly disagrees with my findings.)
- I completed my investigation finding fault by the Council in the added time taken to contact Ms X about her nuisance report. The Council’s apology (and following offer to investigate Ms X’s nuisance reports) has already suitably addressed any distress to Ms X arising from its delay.
Parts of the complaint that I did not investigate
- Many of Ms X’s concerns link to the Council’s decision to grant planning permission to develop the Site. These concerns cover the lack of risk assessments and layout of the development, including the Storage Area and a boundary gate. The planning permission also does not include conditions needing the developer to comply with the development plans or to build and keep an enclosure for the Storage Area. Ms X also points to the application plans not adequately showing her home, including its windows. Ms X therefore understandably questions whether the Council properly considered the impact of the development on her home.
- The Council issued the planning permission over 10 years ago. Ms X could not then object to the planning application or complain about the Council’s decision to grant permission. This is because she lived elsewhere and had no reason to know about the development. However, after 10 years, it is too late now to reasonably and objectively investigate how the Council processed the application and reached its planning decision. And, an investigation could not realistically or substantively change the planning permission, including moving the Storage Area or boundary gate, now the development is built and occupied by third parties. I have not therefore investigated how the Council decided to grant the development planning permission.
- Ms X also makes several points about how the development and its construction have interfered with her legal rights as the owner of adjoining property. For example, Ms X says she has legal rights to access the Site, which a padlocked gate prevents. Ms X also says the development, including the Outbuilding, interferes with her legal rights to maintain her home. Ms X also says she did not agree to the developer attaching the Outbuilding to her property. And, Ms X says the developer has damaged her property and not properly reinstated drains. I recognise that Ms X views the Council’s planning decisions as affecting her legal rights. And yet, the Council’s planning decisions, which it must make on planning and land use grounds in the public interest, are separate from Ms X’s legal rights as an individual owning property.
- The developer is mainly responsible for complying with all legal requirements when developing land, including complying with any legal rights, such as covenants and easements, attached to land. And, the developer will need to resolve any conflicting requirements or risk formal/legal action by the relevant person or body. For example, if development interferes with other peoples’ legal rights or building work damages third party property, the developer risks legal action by the affected owner. I have not therefore investigated Ms X’s concerns about the building work damaging her home or the development interfering with her legal rights as the owner of property adjoining the Site. Ms X, and not the Council, is responsible for enforcing her legal property rights and claiming for property damage.
Investigator's decision on behalf of the Ombudsman