The Ombudsman's final decision:
Summary: There is no evidence of fault by the Council in requiring Mr Y to remediate contaminated land via the use of conditions attached to his planning permission.
- Mr X complains on behalf of Mr Y, the purchaser of a property. Mr X complains the Council previously used the property purchased by Mr Y as a works depot. Mr X says that after Mr Y purchased the property the land turned out to be contaminated and infested with Japanese Knotweed. Mr X complains the Council is not following its policy that the ‘polluter pays’ to clean up the land and Mr Y cannot afford to do so. Mr X also complains that it is unlawful for land infested by Japanese Knotweed to be sold.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
- The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:
- delay – usually over eight weeks – by an authority in deciding an application for planning permission
- a decision to refuse planning permission
- conditions placed on planning permission
- a planning enforcement notice.
- 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 information provided by Mr X and information on the Council’s planning file.
- I have considered the relevant environmental protection and planning legislation and guidance.
What I found
- The property, a warden’s lodge, dates from the late nineteenth century. In planning terms it had a mixed use of offices downstairs and residential upstairs. The property had been abandoned for several years prior to Mr Y purchasing it in February 2015 and was derelict at the time of his purchase. It had previously bene used by the Council to store machinery and equipment.
- The Council was the freehold owner from the late nineteenth century until July 2013.
- In 2013 the Council passed the property back to another organisation because under a covenant the other organisation was entitled to return of the property once it was no longer used by the Council. The Council was not involved in the eventual sale to Mr Y.
- In June 2015 Mr X made a planning application on Mr Y’s behalf to demolish the existing building and outbuildings and build a detached dwelling house. The application proposed a larger residential curtilage than that of the original lodge. The application therefore included a request for change of use of land previously used for non-commercial purposes to residential curtilage.
- On receiving the planning application Mr X says the Council ‘insisted’ on a site investigation. The Council says this was standard practice for new dwellings. The investigation identified elevated lead concentrations in the soil. Mr X says during demolition an extensive network of lead pipes was exposed, removed and capped off to make the site safe. Mr X says the site investigation also identified pollutants associated with vehicle movements consistent with use of a works depot such as fuel and oil spills. A further report was required of the soil in the proposed new garden area.
- The Council determined, having considered the site reports, that clean cover would be required across all areas of soft landscaping / gardens because elevated lead had been discovered in both samples of topsoil. Clean cover involved excavating the soil to a depth of 0.6 metres and installing a cover system including screened clean topsoil. The clean cover would however potentially damage trees and so it was considered hard standing could be constructed over areas with tree roots. The Council’s aim was to protect the end user (Mr X) from contaminated land risks as well as protecting two important trees.
- The Officer’s report noted it had not been possible to reach agreement with Mr X and Mr Y about the development and so the Council decided to impose planning conditions requiring the submission of a further investigation and risk assessment to include the area with the two trees, a remediation strategy to protect these trees, as well as a verification report. The conditions stated that the remediation scheme must ensure the site will not qualify as contaminated land under Part 2A of the Environmental Protection Act (EPA) 1990 in relation to the intended use of the land after remediation.
- Mr X says that Japanese Knotweed was also identified on the site and says this was known to the Council before it transferred the site. The Council said that there had been Japanese Knotweed in surrounding park land since at least 2012 and this was treated when identified.
- The Council told Mr X that when the property was transferred back in 2013 the other organisation raised no enquiries during the transfer process and the transfer was effectively on an ‘as seen’ basis. The Council says it had no knowledge of Japanese Knotweed on the part of the site Mr Y later purchased.
- The Council acknowledged it had responsibilities under EPA to identify potentially contaminated land and has a Contaminated Land Strategy. It said this site was not identified as a site with contaminated land or a site for further investigation as there was little to suggest this parcel of land would contain elevated levels of contamination. Contaminated land is defined in Part 2A EPA as land which appears to the local authority to be in such condition that significant harm is being caused, or there is a significant possibility of significant harm being caused. A desktop investigation did not suggest that this land posed any significant risk.
- The Council’s response to Mr X’s complaint explained that the Council’s policy and approach has regard to the Government’s 2012 Contaminated Land Statutory Guidance which says enforcing authorities should use Part 2A where no appropriate alternative solution exists and the Part 2A regime is one of several ways in which land contamination can be addressed. For example, land contamination can be addressed when land is developed or redeveloped under the planning process.
- The Council says elevated levels of contamination at this site became apparent after planning permission had been applied for and samples taken. The Council says as a result the matter falls not under Part 2A but under the Developmental Control regime.
- Mr X says the contamination means Part 2A does apply and under the Council’s Contaminated Land Strategy the polluter (the Council) should pay to clean up the land. Mr X complains the Council is not applying its ‘polluter pays’ policy to its own actions.
- When someone purchases a property the doctrine ‘caveat emptor’ (buyer beware) applies. This means it is the responsibility of the purchaser to carry out the necessary searches and surveys to be sure they know what they are buying. Purchasers should also make enquiries of the seller. In this case the seller was not the Council but a third party.
- Very old properties will often have lead pipes. Water pipes are the joint responsibility of the landowner and the water company. Caveat emptor would apply to any purchaser and it would be prudent for a purchaser of a very old and derelict property to ensure they get detailed surveys. If Mr Y did so he may have a legal claim against a surveyor if problems with the property were not identified.
- Planning permission is required for the development of land (including its material change of use and demolition). Planning permission may be granted subject to conditions relating to the development and use of land.
- Where an applicant disagrees with planning conditions they can appeal to the Planning Inspectorate. If Mr X and Mr Y disagreed with the conditions imposed by the Council we would have expected them to use their right of appeal.
- The Council’s policy on contaminated land explains that areas where the Council has identified historical contamination which could cause significant harm on its current use will be dealt with under Part 2A EPA. However, land that has not been identified as historically contaminated under Part 2A may be identified as contaminated through the planning process. The Council’s policy says planning applications for development will be assessed where there is a reasonable likelihood of contamination and developers required to undertake ground investigations to determine the extent and nature of contaminants. If contaminants are found that may pose a risk in future, developers are then required to produce a suitable remediation scheme as part of the development.
- The Council says site investigations are required for all new development with a sensitive end use (i.e. dwellings) and this is explained in its planning application documents. Contamination is a material planning consideration and will be considered when a planning application is received.
- In Mr Y’s case he made a planning application to redevelop the site to demolish the existing building, build a new house and to change use of part of the site into garden land. The Council required the land to be assessed for contamination as part of the planning application and to make it safe for current and future use the Council imposed planning conditions on Mr Y to remediate the land.
- It is not fault for the Council to seek to achieve remediation via planning conditions. This was in line with its policy that such situations would be remediated via the planning system not via the Part 2A process.
- The definition of contaminated land under Part 2A is a specific definition of a high level of harm to human health or to controlled water supplies. I have seen no evidence that the Council has determined the level of contamination met the level under Part 2A, but even if it did, it was still in line with local policy and government guidance to remediate any contaminants identified on the land via the planning process.
- The site surveys do not indicate that a high level of harm was present. They indicate the contaminated soil could be covered by hardstanding. The advice to clean the topsoil is in the context that the land is in future to be used as a residential garden. The survey recommends clean cover for areas of ‘soft landscaping / garden’. As Mr Y wished to use the land this way, it was appropriate for the Council to address any contamination issues via the planning process to protect him as the end user (or subsequent residential occupiers). If Mr X and Mr Y considered the planning conditions disproportionate to the risk identified they had a right of appeal to challenge the conditions imposed which we would have expected them to use.
- Mr X says that it is unlawful to sell property when it is known to be infested by Japanese Knotweed. The law does not say this. A seller must disclose the presence of Japanese Knotweed when asked on seller enquiry forms, but it is not correct to say the land cannot be sold. Mr Y did not buy the property from the Council but from a third party. The third party took back the land without making any enquiries. Mr Y says the third party was unable to provide answers to enquiries. Caveat emptor would apply. It was for Mr X to satisfy himself as to the state of the property he was purchasing by carrying out his own searches and enquiries.
- The Council says any Japanese Knotweed found during its ownership was not on the parcel of land later sold to Mr Y, but in surrounding park land and was treated in line with legal requirements. I can see no evidence of fault by the Council.
- I have completed my investigation. There is no evidence of fault by the Council in deciding to remediate contaminated land via the planning process. The complaint is not upheld.
Investigator's decision on behalf of the Ombudsman