Summary: Mr X complained his neighbour built a garage without planning permission and the builder buried asbestos waste in the neighbour’s garden. Mr X says the garage affects his amenity and is concerned the buried asbestos might affect his health. The Council took no formal enforcement action. There was no fault in the way the Council made its decisions.

The complaint

1. Mr X complains the Council has failed to take enforcement action against his neighbour, who demolished a garage and built a larger replacement near the boundary without planning permission.
2. Mr X also complains the Council:
• failed to act when the builder of the new garage buried asbestos waste material from the original garage on his neighbour’s land;
• did not respond quickly enough when he complained through the complaints process.
3. Mr X is concerned the waste will affect his health and the garage will affect his amenity.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I read a record of the Council’s enforcement action, including records of its visits and decisions.
7. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
10. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
11. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.
12. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

Environmental protection law

13. There are different public bodies that have a role in protecting the environment as it relates to waste and pollution control.
14. District and borough council environmental health officers can use powers under the Environmental Protection Act 1990 (EPA) to stop nuisance caused by imminent or ongoing pollution. For example, if an individual was cutting or removing asbestos and causing dust that might cause nuisance, a district or borough council could use its powers to serve an abatement notice.
15. The Environment Agency (EA) can also use powers to stop pollution under the EPA to stop nuisance. The EA also controls waste control through environmental permitting. Waste permits are required to transfer and dispose of waste. Regulations require special arrangements for disposal of potentially hazardous waste, such as asbestos.
16. The Health and Safety Executive (HSE) regulate safety in the workplace under the Health and Safety at Work Act 1974. It can prosecute individuals or companies that breach safety regulations.

What happened

17. Mr X’s neighbour demolished his garage and built a larger replacement on the boundary next to his home. Mr X reported this to the Council. Mr X said there was no planning permission for the garage or for a new fence, which was higher than the existing boundary wall.
18. A planning enforcement officer visited the site and decided no enforcement action was necessary. This was because the officer measured the fence and garage and considered they fell within permitted development limits.
19. Mr X saw his neighbour’s builder bury roofing material from the demolished garage, which he believed to be asbestos sheeting, in his neighbour’s garden. He complained to the Council.
20. An environmental health officer advised Mr X that, as the waste had been buried, there was no immediate risk and an EPA abatement notice would serve no useful purpose. The officer considered that, as the matter related to potential working practice violation and breach of waste control regulations, the Council should report what had happened to the HSE and EA.
21. The environmental health officer spoke to the builder, who confirmed the waste was probably asbestos. The officer spoke to the HSE and EA, and said their responses were essentially the same. The officer said he was told, while there may have been a breach of regulations, no action was necessary as the waste was buried and so did not pose a significant risk to the public.
22. The environmental health officer reported what had happened to the Council’s contaminated land officer. This officer keeps records of contaminated land, which may be used to inform future decisions on planning applications.
23. In response to an earlier draft of this decision, Mr X said the Council could and should have taken enforcement action against his neighbour for fly-tipping on his own land.
24. The Council says an individual who leaves waste on their own land, would not be fly-tipping, but in this case, as waste was buried on land, it was a matter for other authorities to enforce.

My findings

25. We are not an appeal body. Our role is to review the process by which planning decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
26. The Council’s planning enforcement officer considered:
• Mr X’s allegation;
• what was found during the investigation;
• the Council’s powers under the Town and Country Planning Act 1990; and
• permitted development regulations; but
• found no breach of planning control.
27. The Council’s environmental health officer considered:
• Mr X’s allegation;
• what was found during the investigation;
• the Council’s powers under the Environmental Health Act 1990; but
• decided an abatement notice would serve no useful purpose; and
• referred the matter to other regulatory bodies.
28. The Council followed the decision-making processes we would expect to make its planning and environmental health decisions and so I find no fault.
29. I understand why Mr X might be disappointed that an illegal act has gone unpunished. However, the regulatory bodies that have the most relevant statutory powers, are not within our remit and so I cannot investigate the reasons for their decisions.
30. Finally, Mr X also complains about how the Council responded to his complaint. We do not generally investigate complaints about complaints process. This is because it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

Final decision

31. I have completed my investigation as there was no fault in the way the Council made its planning and environmental protection decisions.

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Investigator's decision on behalf of the Ombudsman