London Borough of Bromley (19 019 030)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 28 Jan 2021

The Ombudsman's final decision:

Summary: There was no fault by the Council in how it investigated reports of statutory nuisance, antisocial behaviour, and planning use on a site next to Mrs B’s home. There was no fault in the Council’s decision to restrict its service to not investigate recurring reports of these. It has continued to monitor the site and regularly reviews whether the restriction should stay in place.

The complaint

  1. Mrs B complains about how the Council has handled her complaints about environmental nuisance from unauthorised use of a neighbouring property. In particular, she says the Council has failed to investigate or properly respond to her reports of statutory nuisance from fires lit there.
  2. The Council has also said it will no longer investigate reports of statutory nuisance allegedly caused by Mrs B’s neighbour.
  3. Mrs B also says that the Council has failed to use a joined-up approach or coherent strategy so that antisocial behaviour, control of the site, use of the land and nuisance are tackled together.
  4. Mrs B says that as a result of the Council’s failings, she has suffered the effects of bonfires and noise. The problems are ongoing and have recently got worse. She has been frustrated by her dealings with the Council and put to time and trouble in pursuing matters.

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What I have investigated

  1. The problems started some years ago. I have investigated the Council’s actions from February 2018. I have limited the scope of my investigation because 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)
  2. Mrs B first complained to the Ombudsman in February 2020. The main issue here is that the Council decided not to investigate further reports of nuisance by Mrs B. It made this decision in January 2019. This means that her complaint is late. However, I have decided to investigate this and a period before the Council this decision.
  3. I have decided to investigate the Council’s decision despite it being late, because the issues Mrs B complains about are ongoing and Mrs B appears to have had genuine fear of repercussion from her neighbours. I have extended the timeframe of my investigation to start from February 2018. This is because I need to scrutinise the Council’s earlier actions to decide whether its decision not to act on Mrs B’s further reports of nuisance is faulty.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including evidence from its environmental protection and planning enforcement files, I also considered law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. The Council confirmed it had no comments on the draft. Mrs B sent me further information, which I have considered before reaching a final decision.

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What I found

The law and guidance

Statutory nuisance

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
  2. Typical things which may be a statutory nuisance include:
    • noise from premises or vehicles, equipment or machinery in the street
    • smoke from premises
    • smells from industry, trade or business premises
    • artificial light from premises
    • insect infestations from industrial, trade or business premises
    • accumulation of deposits on premises
  3. For the issue to count as a statutory nuisance, it must:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
    • injure health or be likely to injure health.
  4. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
  5. Once the evidence-gathering process is complete, the 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.
  6. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
  7. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action.

Antisocial behaviour

  1. Local authorities have a statutory duty to take action to combat antisocial behaviour. (Crime and Disorder Act 1998, section 17). The Act gives the Council powers to notices Community Protection Notices. These order the specified behaviour ceases where it is having a detrimental effect on the community's quality of life and is considered unreasonable. If the Council does use its powers to tackle antisocial behaviour, it must still meet its duties to deal with statutory nuisance.

Planning

  1. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining 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 2018, paragraph 58)

  1. Where the Council does think the breach warrants formal action, it has a variety of options available to it depending on the circumstances. One of these is an Enforcement Notice which should specify the alleged breach, and what steps are required to remedy this. The person receiving the notice has a right to appeal this to the Planning Inspector. It is an offence not to comply with an enforcement notice, once the period for compliance has elapsed, and if there is no outstanding appeal.
  2. The Council can also apply to court for an injunction. However, if a person fails to comply they can be committed to prison. In these circumstances a local planning authority should generally only apply for an injunction as a last resort and only if there have been persistent breaches of planning control over long period and/or other enforcement options have been, or would be, ineffective.

What happened

  1. Mrs B lives in a rural area. Adjacent to her home is former farmland. This was divided into around 300 plots and sold to individuals while the Council retained ownership of the access roads. A part of the former farmland land is now owned by Mrs B’s neighbours. From this site, they run a wholesale fish merchants.

Statutory Nuisance and Antisocial behaviour

  1. Over the years Mrs B and her neighbour complained about the antisocial behaviour and unauthorised use of the site. This included fires, cutting down woodland, use as an animal rescue centre and noise. They submitted information, photographs and diary sheets to the Council.
  2. The Council has submitted detailed information of how it responded to complaints made by Mrs B and her neighbour. I have summarised this information below.
  3. Between January and August 2018, residents made five reports of fly-tipping, noise from metal works and black smoke from fires. The Council gave them advice about how to contact it and asked them to take photographs of the smoke. The Council visited but saw no evidence of a nuisance.
  4. The residents reported a verbal threat and at the end of August 2018 the Council decided to formulate an action plan.
  5. I have seen the minutes of a partnership meeting in September 2018. This was attended by the Council’s community services team, its community safety team, its planning team, and its environmental services team. Each summarised the issues but reported there had been no evidence of nuisance, despite in one case visiting the site within ten minutes of the report.
  6. The Council considered using barriers to the land to restrict who could enter, particularly to control fly tipping by others coming onto the land. However, this was ruled out on advice of the legal team, as plot owners have a legal right to access the site and use the paths. In addition, the Council took into account that this had not worked in the past.
  7. The Council’s community safety team also looked at whether it could use antisocial behaviour powers such as a Community Protection Order or Public Space Order. However, to successfully obtain these orders, the Council would need evidence that behaviour was detrimental and persistent or continuing and unreasonable. After consideration, the Council decided it did not have evidence for this.
  8. From September 2018, the Council allocated the site to a dedicated officer to make visits on short notice. Between September and December Mrs B and her neighbours made 12 reports, mainly of nuisance from bonfires and one of diggers on site. Some of these reports were retrospective. The Council visited the site seven times to investigate the reports of nuisances. The Council’s notes say it found no nuisance from a fire and in some cases no trace of a bonfire at all.
  9. Towards the end of November 2018, the Council met with Mrs B. It advised her that it had investigated and not found anything they can take action on. It said that Mrs B could pursue a private court action for nuisance or make a complaint about the service.
  10. The Council met with Mrs B in January 2019. It explained that it would not investigate any further allegations of statutory nuisance from odour or smoke, or reports of antisocial behaviour from this site. It said it had investigated these allegations for many years and has not been able to establish any actionable nuisance. The Council again advised Mrs B that she could take out her own court action should she choose to.
  11. In February 2019, another partnership meeting took place, including Council services and the Police. The meeting heard that additional out of hours visits by a dedicated officer had found no evidence of statutory nuisance and had now ceased. The Police agreed to accompany the Council officers on the next site visit. The Council decided that it would continue to respond in the usual way to new reports of nuisance and antisocial behaviour, and each team would write a definitive summary of what had happened so far and what the residents could now expect.
  12. Between March 2019 and November 2019, Mrs B and her neighbours made 21 reports to the Council, mainly about smoke, earth moving equipment and noise. Some of these were made at the time of the incident but some were retrospective.
  13. The Council visited seven times and despite some of these visits being within minutes of the report, the Council did not find any evidence of a nuisance and sometimes no fire at all was found.
  14. The Council reviewed all the information it had again in November 2019. It decided again that it would withdraw its service for complaints about bonfires and smoke. It would still respond to reports of noise, and of land use. It wrote to Mrs B to explain this.
  15. In December 2019, Mrs B and her neighbours made a total of three reports of smoke. The Council reiterated that the service is withdrawn and referred Mrs B to the Ombudsman.
  16. In February 2020, the Council received a report of odour nuisance from fish and that a fish bone had been found in a resident’s garden. The Council’s food safety team inspected the site and found that the waste from the fishmonger wholesalers was well controlled.
  17. The Council reviewed the case again in February and decided that the service to respond to complaints of nuisance from fire would not be reinstated.
  18. Between February and the end of July 2020, the Council received nearly 30 reports about problems at the site, mainly of fires and noise. However, in that time, the Council liaised with the police who included the area in its COVID-19 patrols. The Council visited three times alone and with the police jointly 22 times. The Police also visited an additional 94 times alone and reported findings to the Council. None ever found signs of nuisance and three times police officers happened to be on site when the reports of smoke or noise from quad bikes racing were made, but still none found any signs of the behaviour complained about.
  19. Mrs B’s reports included that the occupiers of the site were burning commercial waste on site and potentially running a waste recycling business there. The Council considered Mrs B’s photos of smoke from fires but could not see that it was commercial waste being burned and could not find any evidence of this from its visits. In June 2020, the Fire Service was called to the site and extinguished a fire. However, it told the Council that this was loose refuse not commercial waste and there was no concerns about residents.
  20. The Environment Agency is responsible for licensing commercial waste recycling sites. The Council liaised with the Environment Agency. The Agency said it has monitored the site and questioned whether there was any evidence of commercial operation leading to waste rather than the fly tipping by others. The Council agreed there was some fly tipping which it has monitored from overhead photographs.
  21. In November 2020, the Council met on site with the local councillor, the Environment Agency and the Police. The Council did not find any further evidence of nuisance from fires. It did find some evidence of fly-tipping but this was not enough to take enforcement action. Instead the Council is reconsidering ways to better manage access to the site. The Council did not find any evidence of further breaches of planning control.

Analysis

  1. Mrs B lives adjacent to this site. It is large and complex, attracting flytipping and some uses, such as bonfires while allowed, will impact on residents. This is not to say that the use of the land is causing a statutory nuisance. That is for the Council to decide, having taken account of all the evidence it can gather, the law and any guidance. My task is to decide whether the Council has arrived at its decisions without fault.
  2. Overall, the Council says that bonfires are not out of character for a rural area and so will usually be reasonable unless the impact is serious and substantial. I have read the case notes and the Council investigated the allegations of nuisance properly. I would expect the Council to visit the site to identify the source of the noise, odour or smoke, and also visit Mrs B’s premises to assess the impact on her. It, or its partners visited the site many times, sometimes at the same time as the reports were received. In particular, the Council points out that fires should be easier than some other nuisances to witness as they will last longer. There were sometimes fires but the Council and its partners did not find enough evidence of nuisance from these.
  3. The Council did consider photographs and videos sent in by Mrs B and her neighbours. Mrs B complains that the Council did not come inside her home to see the impact. The Council said it did come close to her home on some occasions and to her garden, but if the smoke on site was not a nuisance, then it would be reasonable for the Council not to investigate all instances further by visiting Mrs B’s home.
  4. The Council did receive reports of the sound of gunshots from the site. At that time, it advised its officers not to visit the site. However, this was reviewed and visits recommenced a few weeks later.
  5. Overall, the Council properly investigated Mrs B’s reports of nuisance and antisocial behaviour. It liaised with colleagues, the Police and the Environment Agency to collect evidence. It considered the evidence including that from Mrs B and her neighbours and it reached a decision based on this and the law. It was not fault when the Council decided that it could not take enforcement action.
  6. It is always difficult when a Council withdraws or restricts a service from the public and I have carefully considered the Council’s actions here. The Council has a statutory duty to investigate and take action on statutory nuisances, and to deal with antisocial behaviour.
  7. Mrs B says the Council should not have withdrawn the service when the matters complained about were still disputed. In this case, the Council is not completely withdrawing its service. It has made clear that it will investigate other nuisances and new issues. It has also continued with its proactive duty to monitor its area for nuisances. It has continued with its proactive visits and to liaise with the Police and other partners. It has said that it will not investigate reports of nuisance from smoke or odour, or of antisocial behaviour. This is because it has already investigated these issues and found no evidence. This decision in itself is not fault. It is evident from the file that the Council does review reports as they are made to see if a response is needed and it has responded to some issues despite its earlier decision not to do so.
  8. The files are clear that the Council regularly reviews its decision to restrict the service regarding this site. It does this around every three months to make sure that it is fully aware of any substantial changes and to consider whether the restriction is appropriate and should remain in place. It is also evident from the files there is an appropriate level of oversight for this complex site, involving its Assistant Directors and Heads of Service. There was no fault in how the Council decided or has managed its decisions to restrict the service.
  9. As a result of its investigation, the Council has made some service improvements. It now gives more information to complainants about how it assesses statutory nuisance, and will complete a report to better capture decision-making.

Planning breaches

  1. Some of Mrs B’s reports were about the use of the land and possible development. These included the use of the land for unlicensed recycling, placing portacabins and building new structures on the land, laying hardcore, clearing plots, and occupiers using land not owned by them. Within the timeframe of my investigation, the files show that the Council’s planning enforcement team visited the site on several occasions in 2018 and 2019 in response to reports from Mrs B and other residents about activities on the site. The case notes for individual issues show the Council visited the site in good time, often the next day. The planning enforcement officers also attended and contributed to partnership meetings about the site.
  2. In 2018 and 2019, the Council decided that there were no issues on which it could take action. In summary:
    • It said that clearing plots did not require planning permission and it could not preempt what occupiers might do with these plots in the future.
    • It said from its visits, and also those of its environmental protection colleagues, the Police and Fire Service, there was no evidence of burning commercial waste or operating a recycling or vehicle breakers yard.
    • It found that some vehicles were kept on site and used as a hobby for banger car racing after which these would be disposed of. The Council decided that the occupiers did not need planning permission to store or work on the cars that would be used for a hobby.
    • Residents said there was noise from quadbikes and motorbikes racing on the land, but the Council found no evidence of this on its visits, or those of the services it was working with.
    • It attempted to investigate whether someone was living in a yurt or the barn when the land does not have permission for residential use. The Council visited the site and the notes say it had previous dealings with someone connected with the yurt. It could not make contact with that person, but another landowner said he uses the yurt in the day and not overnight. The planning officers reported at the partnership meeting in September 2018 that the yurt and barn were not in residential use, a caravan was exempt from enforcement action because it has been there for some years. The officers had concluded that there would be metal work from fixing the banger cars but there was no commercial maintenance company running from the site.
    • It visited and spoke to the owners about the portacabin on site. The Council found that this was on a lorry and so decided that this was not development. The owner told the Council he wanted to site the portacabin in the barn while he built a new roof. There were also building material on site.
    • It had installed a gate with a padlock to control who could come onto the site intending that this would reduce flytipping. The lock was removed by a member of the public. The Council later had legal advice that questioned whether it could prevent access to private land even though it owned the access roads.
  3. In 2020, the Council investigated further reports of planning breaches. This time it decided there had been unauthorised development that spanned several plots of land. It found the owners had laid a large area of hardstanding, erected a wooden structure, excavated a large hole and erected fencing around the whole area. To my understanding, Mrs B and others had raised complaints about this area of development in 2018 and 2019. The had reported that the land was being cleared and prepared with diggers, hardcore and building materials taken onto the site and the wooden structure around three metres square had been erected. At the time, the Council had decided not to take enforcement action as clearing land and storing building materials is not development.
  4. The Council took legal advice regarding the planning position. In September 2020, the Council served a planning enforcement notice with regard to the unauthorised development. This gave the owners and occupiers of the plots until January 2021 to remove the shelter, hardstanding and fences, to fill in the hole and to make the area good.

Analysis

  1. Again, this is a complex site with a long and challenging history of planning concerns. I can see how this became frustrating for Mrs B and her neighbours. However, the Council did consider each report and the files indicate that these were investigated. It can only take formal action where this is proportionate and the breach is causing harm.
  2. Although I can see that some of the issues reported such as clearing plots and taking on hardcore is concerning, particularly given the owners apparent lack of regard for the residents, the Council cannot base enforcement action on potential future breaches. The Council has to have sufficient grounds and sufficient evidence that a breach has taken place, in order to take action. The decisive action it has now taken in serving the planning enforcement notices is sufficient to address Mrs B’s complaints about planning issues. There is no fault by the Council.

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Final decision

  1. I have completed my investigation. There was no fault by the Council.

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Parts of the complaint that I did not investigate

  1. 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)
  2. Mrs B’s complaints date back some years. There are no good reasons why she did not bring these to the Ombudsman sooner. For this reason, I have limited my investigation to the Council’s actions from February 2018.

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Investigator's decision on behalf of the Ombudsman

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