Summary: The complainant says the Council failed to respond to his complaint about its use of statutory powers to end occupation of land he owns. The complainant also says the Council has not properly explained a potential breach of data protection. The Council says it properly considered all available powers, researched ownership, visited the site and gathered evidence, took professional advice and sought a court injunction to remove the occupants. It did not have the resources to help with clearing the waste left on the land and served notice on the landowners to clear it. The Council says it followed usual procedures in identifying addresses for service and does not believe this resulted in a breach of data protection. The Council recognises it failed to follow up the complainant’s complaint when it should. The Ombudsman finds the Council acted with fault in its follow up of the complaint and misdirection of a letter but without fault in deciding which of its statutory powers it should use to achieve an end to the occupation.

The complaint

1. The complainant, whom I shall refer to as Mr X, says the Council failed to:
• Properly consider using alternative powers to remove an illegal encampment and fly-tipping from land in the borough;
• Properly investigate the proposals put forward by the landowners of the land affected before issuing court proceedings;
• Properly explain its decision not to use its alternative powers and respond to the complaint about the impact on landowners including refusing to offer any help with the costs of cleaning the area afterwards;
• Properly explain why the Council sent a letter to an address in Bromley with which the complainant has never had a connection when the Council had the correct address for Mr X and his relatives.
2. Mr X says the Council did not respond to his emails about these issues or provide answers to his points and he wants the Council to explain its actions. Mr X says he has suffered stress and anxiety because the Council has not explained why it sent a letter to an address with which he is not connected. This may have revealed personal details relating to his family to people living at that address.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. We may not decide matters requiring complex legal interpretation which could reasonably have been raised within a court of law (Local Government Act 1974, Section 26A(6) and 34(B), as amended
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

9. In considering this complaint I have:
• Spoken to Mr X and read the information presented with his complaint;
• Put enquiries to the Council and examined its response;
• Researched the relevant law, guidance and policy;
• Shared with Mr X and the Council my draft decision and considered any comments received.

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What I found

The law

10. Section 77 of the Criminal Justice and Public Order Act 1994 says that if it appears to a council that persons are residing in a vehicle on land without the consent of the owners the Council may give a direction to those occupants. The Council’s direction may direct them to leave the land and remove all their belongings. If the person served the direction does not follow it, they commit an offence resulting in a fine.
11. The Town and Country Planning Act 1990 contains powers in Section 187B allowing councils to seek an injunction to restrain any actual or apprehended breach of planning control. Section 187B(3) says that the Rules of Court may provide for such an injunction to be issued against a person whose identity is unknown.
12. Under Section 215 of the Town and Country Planning Act 1990 councils may issue a notice to landowners setting out the steps they need to take to improve the condition of their land. To serve a notice, councils must believe the amenity of their area is adversely affected by the condition of the land. The landowner may appeal against a notice to the Magistrates’ Court.

What happened

13. Mr X owns land which, with neighbouring plots of land, travellers occupied between in July 2017 beginning Mr X says on 5 July 2017. During this occupation, the Council says the travellers deposited significant amounts of waste on the land. The area occupied by the travellers covers 28 plots of land including the ones owned by Mr X.
14. To patrol the area and gather evidence of fly-tipping the Council’s officers liaised with the Police. The patrols intended to intercept and stop the fly-tipping vehicles. Only the Police have powers to stop a vehicle, therefore, the Council’s officers needed the Police presence. In response to Mr X’s complaint the Council told him it does not have the finance to mount a 24-hour surveillance to prevent or stop vehicles accessing the site.

Removing the illegal occupation or encampment and stopping fly-tipping

15. The Council says it considered which powers it could successfully use to remove the occupation and stop the fly-tipping. The multiple ownership meant telling all owners of proposed action. To give notice the Council relied on the ownership records held by the Land Registry which it says did not reflect up-to-date contact details of owners. This meant the Council says it and the Police found it difficult to contact all the owners of the plots affected by the occupation.
16. On 11 July 2017, a relative of Mr X asked the Council to exercise their powers under Section 77 of the Criminal Justice and Public Order Act 1994 (Section 77). The Council responded by saying the landowners had responsibility to secure their land and that they may be responsible for any costs incurred by the Council should they fail to do so.
17. When considering the legal powers open to it, the Council says it does not usually use Section 77. For the Council to use this power it must first serve a direction on those occupying the land to leave. If they do not, that becomes a criminal offence. The Council may then apply to the Magistrates’ Court for an order to remove vehicles and occupants from the land. That gives the Council’s officers or its agents the right to use ‘reasonable force’ to evict the occupants. However, the Council says this procedure takes longer than the more immediate powers of the landowner to direct enforcement agents (bailiffs). The Section 77 powers do not include any power to prevent, stop or remove waste left on the site.
18. On 12 July 2017, the Police advised the Leader of the Council they had considered the powers available and decided it would not be right for them or the Council to take the lead. The Police explained the advice given to landowners on the action the landowners could take and why the Police felt they did not have the necessary powers to enter the land. The Police said they would need the express invitation of all the owners. They would also need confirmation from all owners of the land they had not given permission for the occupants to stay on their land. Therefore, the Police advised the landowners to engage enforcement agents (bailiffs) and seek the necessary court orders to remove the travellers from their land.
19. The Council’s Street Enforcement team asked the Council’s legal team on 12 July 2017 for advice on the powers it may use to deal with the travellers and fly tipping. The advice received mirrored the Police reasons for not exercising powers under Section 77, and the Council’s legal advisers said that it could use alternative powers to achieve its objective. Stationing caravans on the land and depositing waste is a ‘material change of use’ in planning terms and therefore needs planning permission. The land has Green Belt designation. The Council decided to protect the land by seeking an injunction under Section 187B of the Town and Country Planning Act 1990 (Section 187B Injunction) to regulate the breach of planning control. The Council acting as planning authority need only consider whether it is in the public interest to protect the amenity of the area. This power did not rely on contact with all the owners of the 28 plots and therefore could be used more quickly.
20. The Council’s officers, with Police escort, visited the occupation site on 17, 18 and 19 July 2017. During the visits, officers gathered evidence enabling them to take a view on what powers to use to best achieve the objective of removing the occupants. During those visits, officers tried to detect and stop fly tippers. The officers and Police succeeded in stopping one vehicle from fly-tipping on the site.
21. On 17 July 2017, the Council wrote to all the landowners at the addresses recorded by the Land Registry. The letter explained the Council understood the land occupied by the caravans did not have the necessary planning permission and landowners should act to stop this use. The letter continued saying if the use continued the Council may take enforcement action against the landowners.
22. The Council applied for a Section 187B injunction which the court granted on 19 July 2017. However, at the same time some of the landowners had successfully applied for an injunction which enforcement agents served on 19 July 2017 giving notice they would evict the occupiers the following day. The travellers left that evening.
23. In responding to my enquiries, the Council explained why it used planning legislation rather than Section 77. The Council says it took specialist legal advice. That advice said the enhanced rules of court for a Section 187B injunction allows the Council to serve notice on persons unknown. The advice said this procedure is effective when dealing with unauthorised encampments. In the professional view of the Council’s advisers these are the most effective and efficient powers to use in the circumstances of this case. The Council acted having taken professional advice on the best way to secure the site from occupation which it hoped would mean an end to the fly tipping.
24. The Council wrote to a relative of Mr X on 15 August 2017 explaining the decision to use the injunction procedure. The Council wrote again on 17 October 2017 explaining why it did not use its Section 77 powers. The Council set out how it had checked with the Land Registry for ownership details and why land in multiple ownership created problems when using Section 77 powers. The Council then wrote to Mr X on 25 October 2017 with similar explanations. The Council says without written evidence of one individual having the power to act for all owners of the 28 plots it had to deal with owners individually. Mr X says the landowners had given consent for one of their number to act as lead who had served a Land Registry Caution served on the site. However, the Council wanted a document showing all landowners had appointed the same person to act for them. It says it did not have such an authority. Therefore, the Council decided to use its alternative planning powers to overcome the problem of identifying all the owners and finding their current contact addresses.

Clearing the land of waste

25. The travellers did not clear the land of the waste that had accrued during their occupation. Landowners are responsible in law for the maintenance and appearance of their land. A relative of Mr X asked the Council on 16 August 2017 if it could help landowners with the clean-up now the travellers had left. In its response of 17 October 2017, the Council said that it would not offer financial support.
26. The waste remained on the land and the Council took specialist legal advice on how to ensure the land was returned to its former condition. Following that advice, the Council decided to exercise its powers under Section 215 of the Town and Country Planning Act 1990.
27. The Council commissioned a professional survey of the land and marked out each plot by stakes in the ground. The survey completed in January 2018 showed which landowner had responsibility for the part of the waste deposited on the land. The Council then served notices (Section 215 Notice) on the owners directing them to clear the land because its condition adversely affected the amenity of the area.
28. The notice gives owners a right of appeal before the local Magistrates Court. Section 215 allows councils to undertake works to remove waste at the cost of the landowner which the Council can recover by securing a charge over the land. However, that would have meant securing a charge on several plots of land. There is no duty on the Council to carry out these works in default of any action by the landowner. It is a discretion which the Council decided not to exercise.

Complaint following service of Section 215 Notice

29. Mr X says he complained to the Council about its choice of powers and its failure to use Section 77 powers or help with the clean-up of the land. Mr X says once the Council had served notices and begun court action it refused to respond to complaints or answer the landowners concerns because the court was now involved.
30. The Council says this is an unfair representation of its action. It says its officers were attending the site and engaging with Mr X and his family. The Council says the difficulties in finding up-to-date addresses for landowners caused it concern because it wanted to ensure all landowners received the notices. Those notices contained important information about the landowners’ rights of appeal. The Council posted Section 215 notices on site as allowed in law and contained only the information allowed in law. The Council says Mr X and his family had suggested in November 2017 that their sites would be cleared by the beginning of December, so the Council says it decided to wait until January 2018 before serving the Section 215 notices.
31. The Council responded to Mr X’s original complaint on 25 October 2017. Mr X raised some further points in November 2017 and the Council decided to pass this to the Environmental Services Department whose officers had carried out the site visits on 17, 18 and 19 July 2017. The Council says those officers could better describe for Mr X the difficulties involved and therefore respond to his concerns. The Council did not follow up the referral to the Environmental Services Department and apologised for the lack of response. Mr X resubmitted his complaint in March 2018 but that did not reach the legal officers charged with responding to it until May 2018. The Council responded the same month although Mr X disputes whether the response covers all his points.

Misdirection of letter

32. The Council employed a professional investigator to research ownership of the land affected by the encampment. The investigator sought to find actual or potential addresses for the service of the legal notices to comply with court rules. The courts expect those serving notices to ensure they have taken all reasonable steps to bring legal proceedings to the attention of all concerned. The investigator found through the research an address as a potential address for one of the owners and so the Council sent a letter to that address. The letter gave information about one of the owners and Mr X’s relative. Mr X says the address used has no connection with the other owner or his relative. The Council already had information giving the current addresses of the other owner and Mr X’s relative and therefore Mr X cannot see why the Council also used this address.
33. The Council says that it acted on the information its investigator found linking the address which it later discovered to be incorrect. However, it says it used the address to make sure the other owner received the notice it wanted to send.

Analysis – was there fault leading to an injustice?

34. My role is to consider how the Council decided to use powers available to it to remove the illegal occupation and clear the site of waste. If it failed to properly consider those powers I must decide if that caused an injustice for which I can recommend a remedy. I cannot decide questions about the service of Section 215 notices. This is because they carry a right of appeal. Where there is a right of appeal the law says the Ombudsman may not investigate because the remedy lies in the appeal which decides if the owner is liable for clearing the land.
35. The Council researched potential addresses for service of formal notices. This led to the Council sending a letter to an address later found to have no connection with Mr X, a fellow owner or Mr X’s relative. This is a potential breach of data protection. Only the Information Commissioner can give a definitive ruling on that. While the Council acted in line with information its investigator had researched it did also have information showing the correct address for the addressee. Clearly it wanted to ensure Mr X’s fellow owner received the notice by sending letters to all addresses with which he may be connected. However, that led the Council to send information to an address with which the fellow owner, Mr X and Mr X’s relative have no connection. I have no evidence the Council considered the risk of a potential breach or evidence it can claim an exception to the data protection regulations. I find therefore, the Council acted with fault when it had other addresses it could and did use. This caused Mr X distress because he shall never know if the occupier of the address opened the letter and saw the information about his relative’s address and potential ownership of land. The occupier may not have opened the letter. There is no record of it being returned to the Council. There is therefore the risk of a breach of data protection which has caused anxiety.
36. Mr X complained the Council did not explain its reasons for failing, in his view, to exercise its powers under Section 77. Clearly Mr X believes those powers are more effective than the powers exercised by the Council. The Council twice delayed responding to his further concerns because no one officer had responsibility for overseeing his complaint and the response sent to him by the Council. I find the Council at fault for failing to properly manage the complaint and the responses to it. This put Mr X to avoidable inconvenience and led him to lose confidence in the Council’s response.
37. The Council decided to exercise its Section 187B powers which meant it did not have to contact all individual owners and it could fast track an injunction through the courts. If the travellers had failed to honour the injunction the Council could proceed against them. The Council has shown the difficulties it experienced in identifying all the owners. The Council believes this meant it could not have acted more quickly using its Section 77 powers. It is a matter of professional judgement on which of the powers available to the Council will most effectively achieve its objective. The Council took suitable specialist legal advice and acted on that advice. I find the Council acted without fault in seeking and acting on legal advice.
38. The landowners’ court order resulted in the travellers moving on. The Council visited the site before they left and attempted to gather information about whom was tipping on the site. Although those visits and surveillance met with limited success in stopping only one vehicle, that is not evidence of fault. Without the finances to mount a 24-hour surveillance the Council undertook what it could relying on the availability of the Police who have the power to stop vehicles. I find the Council acted without fault in carrying out visits to the site with the Police.
39. The law places a responsibility on landowners to comply with Section 215 directions. The Council has discretion on whether to clear the land and charge the landowners for that clearance. It considered if it should clear the land and decided not to exercise that power. The Council exercised its power to enforce Section 215 having considered the action Mr X had started and gave him time to clear his land. I find the Council acted in line with the correct procedure and so I cannot find fault in its decision to issue the Section 215 Notice and its decision not to clear the land in default and charge the landowners.
40. I find it took the Council too long and the repeat of Mr X’s complaint before it gave him an explanation of its decision to use its planning powers rather than the powers under Section 77. I find that the Council acted with fault causing an injustice. This investigation has provided information about how the Council decided which powers to use, what advice it took and how it liaised with the Police. That in part remedies the injustice arising. Since this complaint the Council says it has reviewed its procedure and trained officers so that the failure to take ownership of the complaint would not be repeated.

Recommended and agreed action

41. To place Mr X in the position he would have been but for the faults I found in this investigation I recommend, and the Council agrees, to within one month of my final decision:
• Apologise to Mr X for the delay and failure to follow up his complaint;
• Pay Mr X £200 in recognition of the stress caused by the uncertainty over whether a breach of data protection occurred;
• Pay Mr X £150 in recognition of the inconvenience caused by its lack of response causing Mr X to lose confidence in the Council’s response.

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Final decision

42. I find the Council acted with fault in its response to Mr X’s complaint but without fault in its consideration of which of its statutory powers it should use to achieve its objective.

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Investigator's decision on behalf of the Ombudsman