North East Lincolnshire Council (18 002 156)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 07 May 2019

The Ombudsman's final decision:

Summary: Miss B complains about how the Council dealt with enforcement issues associated with development near to her home, and about how the Council dealt with her complaint about that. The Ombudsman finds that apart from minor faults identified by the Council during its own complaint investigation, there was no other fault and Miss B and her neighbours were not caused significant injustice.

The complaint

  1. The complainant, whom I shall call Miss B, complains on her own behalf and on behalf of neighbours that the Council has failed to take appropriate action in respect of reports of nuisance (smoke, asbestos) and planning matters (unauthorised demolition) at a site near to their homes. In addition. Miss B complains the Council’s complaint process took too long and provided no acceptable resolution.

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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 considered all the information presented by Miss B about her complaint. I made written enquiries of the Council and took account of the information it provided in response. I provided Miss B and the Council with a draft of this decision and gave them the opportunity to comment on it.

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What I found

  1. In June 2017, the Council received a planning application for development near to the homes of Miss B and her neighbours. The application sought permission for various works including removal of a large asbestos clad structure.

Activity on the development site before permission was granted

  1. From July 2017, Miss B and her neighbours began to report activity on the site for which the above planning application had been made but not yet determined.
  2. On 27 July 2017 one of the neighbours reported there had been burning of undergrowth and greenery, the smoke from which took three days to clear, and more piles were in place ready to burn. They also expressed concern about the proposed demolition of the structure containing asbestos. The Council acknowledged this report and opened an enforcement file.
  3. Under the Environmental Protection Act 1990 it is an offence to cause a statutory nuisance. This can be from odours, fumes and dust. If someone complains to a council about a nuisance, the council should investigate and decide whether it is a statutory nuisance. It can also choose to take informal action if something is causing a nuisance, but it is not a statutory nuisance. The council could write to the owner about this. But before a council takes enforcement action, any statutory nuisance must be witnessed by an environmental protection officer. The officer must decide if the nuisance seriously interferes with the complainant’s ability to live normally. The officer must come to an independent judgement taking into account the type of nuisance, its duration, intensity and location to decide if it is a statutory nuisance.
  4. The day after the report was made, the Council spoke to the neighbour who had complained and advised them about the need to for nuisance to be witnessed. The Council also advised about reporting further concerns and contacting the fire service if necessary. The Council’s procedure states that officers will attend as soon as practicable, but the report here was made after the event.
  5. On 10 August, a planning enforcement officer visited the site. No works were taking place and the officer noted there was no breach of planning control at this time. On 15 August, the Council received from the developer a demolition notice, which included a method statement showing precautions to be taken while removing asbestos. On the same say the Council received another report, this time from Miss B, of a fire having been lit the previous evening which was still smouldering. It was noted the fire service had been called. Miss B reported concerns that workers were preparing another large bonfire which included mattresses and wooden items. The Council’s records show officers visited the following day and gave advice. On 17 August, another of the neighbours reported the fire lit on 14 August was still smouldering: The Council’s records show an officer attended again and helped to put out the fire.
  6. On 18 August, the Council served a demolition counter notice on the developer. A counter notice states conditions that need to be met, in this case conditions relating to notification of commencement and completion of demolition.
  7. On 12 September, one of the neighbours contacted the Council to report concerns about unauthorised work on the site, including tree clearance, demolition, and bonfires, and the improper handling of asbestos. On the same day Miss B sent her Ward Councillor an email about these issues, which was then forwarded to the planning department. The following day further reports were made about the handling of the asbestos on the site. Internal emails exchanged within the Council show there was some lack of clarity about who should be dealing with this. However, an environmental health officer (EHO) then spoke to Miss B and advised that asbestos is a matter for the Health and Safety Executive (HSE), and she was given the relevant contact details. The records show the EHO had also spoken to the demolition contractor.
  8. The following day there was a site visit by a planning enforcement officer. Notes from the visit record the demolition contractor said they were now only removing the sheets that had already been cut as these could blow off in the high winds. The officer told the contractor that no further demolition or removal of sheets on the main roof or on any other part of the development should be done, and the contractor confirmed they would make safe only. The planning enforcement officer then updated Miss B accordingly as well as providing the EHO with an update. An officer from the Community Pride Team also visited the site after work had been stopped, and he also visited Miss B who confirmed she would contact the HSE. She later confirmed she had done so.
  9. On 14 September, the planning enforcement officer visited the site again having had a further report from a neighbour of work on the asbestos. The officer again asked for work to be stopped until all necessary permissions were in place, unless the structure became unsafe in the meantime. The contractors left the site. The planning enforcement officer then provided the HSE with details of the asbestos contractor.
  10. On 20 September, the HSE told the Council it had served a Prohibition Notice the day before. This was to ensure work did not recommence until a demolition survey had been carried out for the presence of asbestos. The HSE said notices of contravention were also to be issued for other matters. This information was circulated within the Council.

Planning permission is granted

  1. On 7 November 2017 the Council approved the planning application for development of the site. Several pre-commencement conditions were imposed, including the submission and approval of a construction management plan to include a demolition method statement; and noise, vibration, and dust mitigation measures to be taken during demolition and construction (in the interests of residential amenity). An informative relating to asbestos was included on the planning permission decision notice, reminding the applicant of duties under the Control of Asbestos Regulations 2012, and general duties under the Health and Safety at Work Act 1974.

Activity on the development site after permission was granted

  1. On 22 November, the planning department was alerted that roof timbers were being removed and it confirmed with the HSE that the prohibition notice was being complied with. The HSE was the relevant authority regarding asbestos and it was appropriate for the Council to rely on its responses.
  2. The Council received further reports of works to the asbestos roof on the site on Friday and Saturday 24 and 25 November, and on 27 November a planning enforcement officer and building control officer visited the site. They noted there were no workers on site. The rest of the roof asbestos has been removed and the remaining structure was deemed safe.
  3. On 29 November, the Council served a Breach of Condition Notice. Several conditions attached to the planning permissions were deemed breached. 28 days were given for compliance.

Application is made for the discharge of conditions

  1. The developer made an application for the discharge of conditions attached to the planning permission for the development. The Council validated this application at the beginning of January 2018.
  2. Before this application was determined, more work on site was reported to the Council by Miss B and her neighbours. On 12 March, Miss B reported work on site and the Council acknowledged this the same day and visited the following day. There were no workers present and no evidence of further demolition or any works. The Council advised Miss B accordingly and confirmed the application for the discharge of conditions was still pending approval. On 16 April, Miss B made a further report. The Council again acknowledged this and visited the same day. An excavator was operating on site. The developer was told to cease work until the appropriate planning conditions had been discharged. The Council updated Miss B the following day.
  3. Having received another report of works on 22 April, the following day the Council served a temporary stop notice. The Council’s investigation of a further report on 24 April found internal plumbing works were being carried out which were not prohibited by the stop notice. On 16 May, the Council served a stop notice and an enforcement notice requiring the developer to cease development until relevant conditions had been discharged.
  4. No further breaches were established, and the Council approved the discharge of conditions on 29 August 2018.

Miss B complains to the Council

  1. In June 2018 Miss B complained to the Council about the way matters associated with the development site had been dealt with.
  2. When it responded to the complaint, the Council’s investigator partially upheld some relatively minor points, principally about communications. It found that:
  • On occasion, callers were asked to contact a further service to give or receive information, when the correct service should have been notified to call them back if possible;
  • Some emails between the complainants and the Council asking for updates were not responded to, although this was partly due to the extensive communications with numerous emails being sent to the various departments involved;
  • When asbestos concerns were reported, callers were advised to contact the HSE, rather than the council officer making this contact on their behalf. The investigator considered this was inappropriate. However, the Council now confirms the HSE has specific rules about reporting and a concern cannot in fact be reported on behalf of another person;
  • Regarding non-availability of officers due to leave or at weekends, the investigator noted that while it is not practical to have staff available at all times to visit sites, consideration should be given to how the council can assure the public of a proportionate response outside normal office hours;
  1. The Council apologised for identified failings and made the following recommendations to address these:
  • That the Council’s website is amended to ensure all relevant information is provided to ensure that a member of the public can access the right service, including reference to the role of the HSE and its contact details;
  • That Council officers be reminded that a customer should only have to contact the council once, and every effort should be made to ensure the appropriate officer contacts the customer to assist with their query;
  • That the Council develop and use a protocol to ensure that in cases such as this, regular updates are issued to the concerned parties;
  • That the Council consider how gaps in the availability of enforcement officers might reasonably be addressed.

Analysis

  1. The Council’s enforcement service, both for planning and for reports of environmental nuisance from smoke etc, are by necessity reactive rather than pro-active. The Council cannot provide on-going monitoring of all development sites in its area. This is not fault.
  2. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This states that:
    “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.’’
  3. The Council does have a planning enforcement plan, and this sets out what will happen when a breach of planning control is reported, how cases are prioritised, the timescales for response, possible courses of action, etc. It includes the information that enforcement action is at the discretion of the Council.
  4. In respect of environmental enforcement, the Council’s general statement of enforcement policy notes that:
    “Where there is a shared enforcement function (eg with the Environment Agency…), officers will notify the relevant enforcement agency of any breach for which that agency is responsible. Where the Council and another enforcement agency each have powers of enforcement, we will liaise with that other agency to ensure effective co-ordination, having regard to the respective legislation, to avoid inconsistencies, and to ensure that the most appropriate action is taken to resolve any breach”.
  5. Regarding nuisance behaviour, insofar as smoke is concerned the Council’s webpage says:
    “Our officers will attend as soon as is practicable and if they consider a smoke nuisance is occurring they will engage with the party involved”.
    The assessment of whether smoke is a statutory nuisance, under the terms of the Environmental Protection Act 1990, is a matter for a relevant enforcement officer to determine, exercising professional judgment.
  6. Apart from some minor failings identified during the Council’s complaint investigation, and which I am satisfied it is appropriately addressing, the evidence in this case shows that the Council’s actions followed the appropriate procedures. Its actions in respect of the reports of nuisance and unauthorised development were not affected by fault causing significant injustice to Miss B or her neighbours.
  7. Miss B also complained that the Council’s complaint process took too long. The e complaint was received on Wednesday 6 June and acknowledged on 12 June. The Council’s complaints procedure says complaints will be acknowledged within five full working days from date of receipt. The complaint was then immediately escalated to the second stage of the complaints process: this stage had published response time of 25 working days, but it is acknowledged that some investigations may take longer. In this case the stage 2 response was due on 11 July. The Council made a request for a four-week extension on 13 July, so there was a slight delay there. Before the expiry of the four-week extension period the Council obtained agreement for a further four-week extension, and on 6 September the officer updated Miss B advising he hoped to complete the response by 13 September. It was finally issued on 14 September. The chronology shows there were no significant delays, and Miss B was updated appropriately during the process.

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Final decision

  1. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman

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