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Wigan Metropolitan Borough Council (20 014 544)

Category : Housing > Private housing

Decision : Upheld

Decision date : 20 Oct 2021

The Ombudsman's final decision:

Summary: there was fault in the way the Council responded to Mr X’s reports about a mice infestation and overgrown vegetation in his next door neighbour’s property. Mr X suffered some nuisance and inconvenience as a result. We have made recommendations for a suitable remedy.

The complaint

  1. Mr X complained that the Council failed to take timely and effective action when he first reported nuisance and a mice infestation caused by his neighbour’s failure to maintain her house and garden. He says this is a health hazard which caused him and his family significant stress and frustration. He repeatedly contacted the Council to log reports, ask for updates, and press them to take action.
  2. Mr X says mice from his neighbour’s property got into his home and cause a nuisance by running through the attic and cavity walls. The overgrown vegetation in the neighbour’s front and rear garden is an eyesore. He worries that overgrown vines may cause structural damage to the foundations of his property.

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The Ombudsman’s role and powers

  1. 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)
  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 have spoken to Mr X and considered the information he sent us. I made enquiries to the Council and considered the photographs, correspondence and case records sent with its response.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legal background

  1. The Council has powers, as a local planning authority, to serve a notice under section 215 of the Town & Country Planning Act 1990 on the owner or occupier of any private land or building which is in an unreasonably untidy condition. The Act says the condition of the land must adversely affect the amenity of the area.
  2. A section 215 notice specifies steps which must be taken to correct the situation within a given timescale. It is an offence not to comply with the notice. If the requirements of the notice are not carried out in time, a Council can consider whether to prosecute.
  3. The 1990 Act gives councils the power to enter the land to carry out the works specified in the notice and reclaim costs from the landowner. It may do this by putting a charge on the land or property.
  4. Central government has issued guidance to local planning authorities in the National Planning Policy Framework. It says 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.
  5. The Council amended its Local Enforcement Plan in January 2021. The Plan explains its criteria for prioritising cases for a planning enforcement investigation. It says it will investigate reported breaches where land is in a condition leading to an impact on amenity within 15 working days. It defines this as:
    • An impact due to the presence of physical features on the site, e.g mounds of earth / rubble, dilapidated structures;
    • The land is visible from public vantage points; and
    • the impact is not due to a temporary situation such as active demolition or a development site.
  6. The amended Plan says the Council will record a reported breach, but not carry out an enforcement investigation, where the land is in poor condition, but is only visible from one or a small number of private properties (such as domestic rear gardens) or the only impact arises from overgrown vegetation. It says that in extreme instances it may classify a case as a higher priority and investigate
  7. Councils have specific legal powers under the Prevention of Damage by Pests Act 1949 to take any necessary steps to ensure that owners and occupiers of land keep it free from large numbers of rats and mice. Councils may serve a notice under section 4 of the Act, setting out the steps they require and the time limit for action. They can require a treatment by a professional pest controller, removal of rubbish, or structural works.
  8. The Council provides a pest control service to treat mice infestations in residential and commercial properties. It charges a flat rate fee for the initial inspection and subsequent visits to carry out treatment.

What happened

  1. The complainant, Mr X, is the owner-occupier of a semi-detached house in the Council’s area. The adjoining house is owned and occupied by his elderly neighbour, Mrs Z. Their front and rear gardens adjoin and are separated by boundary fences.
  2. In mid-September 2019 Mr X made an online report using the Council’s Report It system. He said:
    • Mrs Z’s house was in a very bad state of repair;
    • The garden was severely overgrown and damaging the fence panels at the front and rear;
    • It was overflowing on to the pavement at the front causing a hazard to pedestrians;
    • He had paid for pest control company to treat a mice infestation in his home which he believed originated from Mrs Z’s property;
    • He had spoken to Mrs Z but she was not willing to take remedial action.
  3. Mr X made a second report in mid-October 2019 after getting no response to the first report. He said the situation was deteriorating. He submitted a third report in early February 2020.
  4. On 7 February Officer A, from the Environment Waste Service, spoke to Mr X. She apologised on behalf of the Council for the failure to act on his previous reports. She arranged for an officer to inspect the property.
  5. In mid-February Officer B made a site inspection. She found no waste material in Mrs Z’s garden but confirmed it was very overgrown. The Council sent me the photographs Officer B. They show the rear garden had been severely neglected and was in a very poor state. She told Mr X the Environmental Enforcement team could not deal with this but a colleague would find out if another Council service could help.
  6. A few days later, Officer A contacted the Planning Enforcement team and Public Health teams to ask if they could assist. The Public Health team told her they did not deal with overgrown gardens. They said it was a civil matter between Mr X and his neighbour. Officer A updated Mr X by email. Later in February Officer A confirmed that the Environment Waste Service could only remove decaying waste or dumped items such as sofas and carpets. She told Mr X he could make an online request for a pest control visit to deal with the mice.
  7. From the records I have seen so far, it seems the Planning Enforcement team did not respond to Officer A’s enquiry in February 2020.
  8. In late September 2020 Mr X made another online report. He said Mrs Z was not willing to take action. It was completely unacceptable that there was a mice infestation in his home. He asked for urgent assistance and gave the reference numbers for his three earlier reports.
  9. There was further email correspondence between Mr X and Officer A around the same time. Officer A said she had forwarded his latest email to the Planning Enforcement Team to ask if it could consider using its powers under section 215 of the Town & Country Planning Act. She had also sent it to the Council’s Private Sector Housing Team along with Mr X’s contact details.
  10. In late September Officer D from the Planning Enforcement team replied to Officer A’s email. He said if the rear garden was overgrown, the team would not take action under section 215.  The untidy land had to have an impact on the visual amenity of the area which means it must be visible from a publicly accessible place. The Private Sector Housing team also informed Officer A it could not help.  
  11. In early October 2020, two days after a Councillor made enquiries on Mr X’s behalf, Officer D from the Planning Enforcement team inspected Mrs Z’s property. He took several photographs which I have seen. They show the front and rear gardens of Mrs Z’s property were severely overgrown. He said the vegetation was about two metres high in the rear garden and growing over the rear wall of Mrs Z’s house. The brambles in the front garden were going over the front boundary wall on to the pavement in front of the house.
  12. Officer D wrote to Mrs Z on the same day. He gave her 14 days to
      1. cultivate, remove and dispose of all the vegetation from the front garden, including that encroaching on to the public highway; and
      2. cultivate and dispose of all the vegetation growing out of control in the rear garden area, including that encroaching on to neighbouring properties.

The letter warned that if she failed to comply, he would refer the matter to the Legal Service who would consider whether to take legal action under Section 215 of the Town and Country Planning Act 1990.

  1. On 12 October, shortly after Officer D’s site visit, an officer responded to the Councillor’s enquiry. She said Officer D’s letter had been sent to “nudge” Mrs Z to clean up the site because it affected the rear garden and was not visible from a public highway. She said the Council could not proceed with a section 215 Notice in these circumstances. (This statement conflicted with Officer D’s observations on the site inspection a few days which confirmed there was overgrown vegetation in the front garden too which was visible from the street).
  2. Mrs Z did not respond to Officer D’s letter. Officer D returned to inspect the property in late October. As no clearance work had been done, he referred the matter to the Legal Service on the same day. He said the gardens were in the same parlous state which affected the visual amenity of both neighbours and the overall street scene. He said it was appropriate and necessary to take enforcement action under Section 215 Town and Country Planning Act 1990 to resolve this.
  3. In mid-November 2020 Officer C in the Community Resilience team telephoned Mr X to respond to his September 2020 report. Mr X told him the brambles in Mrs Z’s front garden were growing into the street which might affect passers-by. The overgrown grass in the back garden was pushing against his fence panels and mice were getting into his property. He could hear the mice running around inside the cavity walls of his house. Officer C confirmed the nuisance Mr X reported was not anti-social behaviour and his team could not help him.
  4. Officer C spoke to Officer D in the Planning Enforcement team on the same day. Officer D explained he had referred the matter to the Legal Service and had updated Mr X by email.
  5. In late November 2020 an officer in the Legal Service wrote to Mrs Z. She asked her to complete the works specified in Officer D’s letter by 8 December. She said a section 215 Notice would be served without further warning if she did not meet this deadline.
  6. Mrs Z arranged for the vegetation in the front garden to be cleared in December 2020. She asked for more time to get the rear garden cleared. The Legal Service agreed to an extension but did not set a new deadline.
  7. In February 2021 Mr X arranged for a pest control company to survey his home. It suggested some mice-proofing works to block access points. It also said it was concerned by the condition of Mrs Z’s house and garden which were “likely to be conducive” to a mice infestation.
  8. In late March 2021 an officer in the Legal Service wrote to Mrs Z. She said Mrs Z had agreed to tidy the rear garden in early 2021. She referred to a recent telephone conversation when Mrs X told her someone would look at the rear garden in March. Mrs Z said she expected to have the works completed by March or April 2021. The officer then asked Mrs Z to give a timeframe to complete works in the rear garden.
  9. Meanwhile Mr X continued to contact the Council to express his frustration at the lack of progress. He used both stages of the Council’s complaints procedure between January and April 2021. The officer who investigated Mr X’s Stage Two complaint accepted there had been a delay in acting on his first two reports. She said the Council had decided it was not expedient to serve a section 215 notice when Mrs Z said she was willing to get the remaining works done. In late April the officer informed Mr X that:
    • The Council would clear the rear garden of Mrs Z’s property that week;
    • Pest Control had visited Mrs Z’s property the previous week and left mouse bait. However, on a follow up visit, they found no evidence that the bait had been taken;
    • The Council was willing to offer Mr X a free Pest Control visit to assess the situation at his property. Mr X should contact the Council if he wished to take up this offer.
  10. The Council cleared Mrs Z’s rear garden in late April 2021. Mr X says it took far too long to achieve this outcome. He had to keep contacting the Council because it failed to act on his early reports. He feels its overall communication with him was poor and the Council only took action when he escalated the matter to a Councillor. Mr X believes the problem with overgrown vegetation is bound to recur because Mrs Z simply does not maintain her home and garden. He believes the Council was much too lenient in giving Mrs Z more time to clear the garden after it warned her in October 2020 that it would serve a notice.

The Council’s comments

  1. In response to my enquiries, the Council accepted there had been a delay between Mr X’s initial enquiry in September 2019 and the first site visit by the Environmental enforcement team in early February 2020. It says this happened due to an error by the officer in the Community Resilience team who handled the initial enquiry. The officer has since received training.
  2. The officer from the Environmental Enforcement team inspected the property promptly after receiving the referral in February 2020. Having established there was no waste in the garden, Officer A then contacted other Council services to try to find a solution.

My analysis

  1. There was unreasonable delay in acting on Mr X’s first report in September 2019. He had to make two further reports, and wait more than four months, for the first inspection by the Environmental Waste team in February 2020. That was fault.
  2. Early telephone contact with Mr X would have clarified which was the most appropriate team to deal with his concerns. Instead it was assumed that the Environmental Waste team should investigate when there was nothing in Mr X’s first report to indicate the presence of waste material in Mrs Z’s garden.
  3. The inspection in February 2020 found no putrescible waste in the garden. To her credit, Officer A then liaised with several other Council services to ask if they may be able to assist Mr X. She contacted the Planning Enforcement team in February 2020 but I have seen no evidence that it replied. That was fault. It means there was a missed opportunity to consider then whether it would be appropriate to use the section 215 powers.
  4. In his first report in September 2019, Mr X said there was overgrown vegetation in both the front and rear gardens of Mrs Z’s property. For some reason, the Council understood the problem was confined to the rear garden. This misapprehension was not corrected until Officer D visited Mrs Z’s property in October 2020. An officer also wrongly informed the Councillor in October 2020 that only the rear garden was affected when Officer D had seen during his inspection a few days before that both the front and rear gardens were severely overgrown.
  5. In my view, if there had been no delay in dealing with Mr X’s reports, and the Planning Enforcement team had inspected sooner, it is likely the Council would have written to Mrs Z before the end of 2019 requiring her to take remedial action within 14 days. I recognise Mrs Z did not complete all the required works when the Council wrote in October 2020 and warn it may serve a section 215 notice. In the end the Council had to clear the rear garden. However, on the balance of probabilities, it seems likely this outcome would have been achieved several months sooner but for the delay and faults in handling Mr X’s earlier requests.
  6. We are not likely to find fault with the Council’s decision not to serve a section 215 notice on Mrs Z. Enforcement action is discretionary and the Council has to consider each case on its merits and act proportionately. It was entitled to take into account that Mrs Z had cleared the front garden in December 2020 and had stated her intention to clear the rear garden in early 2021. In the event she did not do so but the Council could not reasonably have foreseen that at the time. However we are likely to find fault because the Legal Service did not give Mrs Z a firm date for compliance when she asked for more time to clear the rear garden. It was particularly important to set a date in view of the drift and past delays.
  7. It is not reasonable to expect the Council to pro-actively inspect and monitor conditions at Mrs Z’s property. But we would expect it to give timely consideration to any further reports Mr Z may make about the condition of the property.
  8. The Council found no signs of a mice infestation in Mrs Z’s property when the pest control team laid bait there in April 2021. Nevertheless Mr X is convinced her property is the source of the infestation in his home. The Council offered to arrange for its pest control team to carry out a free inspection of his property. That was a reasonable offer and it could have helped to establish what could be done to block access points to his property. I am unlikely to find fault here. It is for Mr X to decide whether he wants to take up this offer.
  9. Mr X was put to considerable time and trouble pursuing his concerns and chasing the Council for information. It took three online reports to elicit the first response in February 2020. He repeatedly contacted officers to chase progress and had to seek the help of a Councillor before the Planning Enforcement team made a site inspection. That inspection confirmed Mr X’s concerns were justified and it was appropriate for the Council to take action. I consider the Council’s handling of his requests caused Mr X avoidable inconvenience and frustration which merits a modest payment.

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Agreed action

  1. The Council has agreed to take the following action within one month:
    • Apologise to Mr X for its delay and the poor handling of his requests;
    • Pay him £150 to recognise the impact of the delay and his time and trouble;
    • Give Mr X details of a named officer he can contact if he needs to report further issues with Mrs Z’s property;
    • The named officer should find out if there are any local charities or voluntary organisations which may be able to assist elderly or disabled residents who are no longer capable of maintaining their gardens and cannot afford to pay for a gardening service. It should forward any relevant information to Mrs Z.
    • Review how it assesses and categorises enquiries received through the Report It system to ensure they are directed to the most appropriate service.

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Final decision

  1. The Council was at fault and this caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman

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