Summary: Miss B complains that the Council was wrong to investigate her for alleged fly-tipping and a breach of covenant / planning control. The Ombudsman has found no fault in the Council investigating the alleged fly-tipping, though it should tell Miss B if it plans to take further action. The Council was wrong to investigate the construction of a boundary fence as a breach of covenant, because the Council was not a party to this agreement. It should make a payment for Miss B’s associated legal costs and for her time and trouble and distress. However, if Miss B disagrees with the Council issuing a planning enforcement notice in respect of the fence, she can appeal to the Secretary of State.

The complaint

1. Miss B complains that the Council has unfairly investigated her for allegations of fly-tipping and an alleged breach of covenant / planning control.

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The Ombudsman’s role and powers

2. 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)
3. If a complainant employs a professional person to help them make their complaint, such as a solicitor or surveyor, we will only ask the council or care provider to pay their fee in exceptional circumstances. This is because people do not usually need a professional to complain to us.
4. 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)
5. 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), as amended)
6. 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.

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How I considered this complaint

7. I have considered Miss B’s solicitors’ written complaint and supporting papers. I have considered the Council’s response to my enquiries and those of the previous investigator. I have had regard to relevant legislation and guidance as set out below. I have also sent Miss B’s solicitors and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

Planning permission

8. Planning permission is required for the development of land (including its material change of use). Parliament has given a blanket planning permission (“permitted development”) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.
9. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework July 2018, paragraph 58)

Planning Enforcement - Council policy

10. Planning enforcement complaints are considered in accordance with the Council’s Planning Compliance Policy. This states:

“Complaints will initially be referred for investigation to the Community Safety and Enforcement Service where officers will consider the issues raised.”

“Officers from the Community Safety and Enforcement Service will undertake an investigation into the complaint to gather any necessary information and evidence. The council’s Development Management Service operates in connection with the council’s statutory role as the Local Planning Authority. It may therefore be necessary for enforcement officers to consult with qualified planning officers to obtain an expert judgement and decision as to the course of action to follow.”

National Guidance

11. The Government has published guidance for local authorities entitled Fly-tipping: council responsibilities on the Gov.uk website. This explains that, when assessing an incident,
12. “[councils] must gather as much information as [they] can about:
• the circumstances, for example if anyone witnessed the fly-tipping, the date and time it happened and a description of any vehicles involved
• land type, for example relevant land or privately owned
• location, for example highway verge, back alleyway, railway embankment or river
• the amount and type of waste, for example solid, liquid or gas
• its potential effects, for example how it may harm people, animals or the environment.”

Fly-tipping - Council policies

13. The Council considers complaints about fly-tipping with reference to both its Anti-Social Behaviour Policy and its Environmental Crime Enforcement Policy. The latter policy states:

“Authorised Officers will generally take a staged approach to addressing incidents of environmental crime based on the above considerations and this Policy document. The staged approach, in no particular order could be as follows: Take no action; Take informal action; Issue formal/informal warning letters; Serve statutory notices; Issue formal cautions; Issue Fixed Penalty Notices (FPN); Prosecute; Issuing of Injunction; Seizure of equipment; Confiscation of assets.”

What happened

14. Miss B lives in a detached bungalow in a cul-de-sac. There is a public footpath on one side of her home and a row of bungalows on the opposite side.
15. In August 2017, following a complaint of threatening behaviour, a Case Management Officer from the Council’s Community Safety and Enforcement Service undertook two visits to Miss B’s property. No further action was taken in respect of the alleged antisocial behaviour, but the officer noted that Miss B’s fence might be too high and a breach of planning control. She referred this to the planning enforcement team for advice, but no further action was taken.
16. In November 2017, a complaint was received that Miss B’s fence was causing an obstruction to the view of the occupants of the neighbouring property, when leaving their drive. The complainants also informed the officer that they had witnessed their neighbour throwing garden waste over the back fence.
17. The officer wrote to Miss B in December 2017 stating that the two-metre fence was a breach of a covenant on the property conveyance. She said that Miss B needed to remove the fence from her property to the edge of her drive where it meets the public footpath, to avoid further action being taken.
18. She also said that it had been reported that someone from Miss B’s household had thrown garden waste onto land alongside the footpath. She said this was a fly-tipping offence which carried a fixed penalty fine and the garden waste needed to be removed within three weeks or she would have to issue the fixed penalty. She invited Miss B to call her if she wished to discuss any aspect of the letter.
19. At the end of December 2017, the officer received an email from a solicitor representing Miss B. The solicitor, who is a neighbour and former business associate of Miss B, denied that the waste had anything to do with Miss B. He also asked the officer to explain what action was required in respect of the fence, what action the Council proposed and under what powers it would be acting. He pointed out that there were other fences in the area which appeared to be of a similar nature and asked whether a letter had solely been sent to Miss B.
20. After receiving a signed authority, the officer responded to the solicitor in January 2018. She said the complainants were not 100% sure who had carried out the fly-tipping. The Council would therefore not take the issue of fly-tipping further but would arrange to clear the waste itself. As to the fence, the officer explained that the complainants would be happy if this was reduced to one metre at the front of the property. The solicitor told the Council that he had discussed this with Miss B.
21. Later in February 2018, the officer emailed the solicitor as no action had been taken in respect of the fence. The next day, a second firm of solicitors wrote to the Council with a subject access request relating to these matters. The officer wrote back to the second solicitors requesting a proof of authority to act on Miss B’s behalf. As she did not receive this, she did not respond to the letter.
22. In the meantime, in March 2018 the Council received a witness statement stating that there had been a further case of fly-tipping of garden waste by Miss B’s partner in February 2018.
23. In late April 2018, the officer wrote to Miss B explaining that the issue with the fence remained unresolved and reiterating that this was a breach of the covenant on the property. She asked Miss B to carry out the works within 28 days or further action would be taken. She also said she had received a statement regarding further fly-tipping and wanted to visit Miss B at the start of May 2018 to discuss this.
24. The officer then received a call from the second solicitors which she felt to be quite threatening. She explained that the Council had not responded to the solicitor’s subject access request (SAR) because it had not received the necessary authority. The second solicitors provided the authority on 1 May 2018, so the Council explained that the response was due on 11 June 2018. In the event, the Council sent the SAR response in late May 2018.
25. In early July 2018, the officer contacted the solicitors to check where matters stood on the fence. There was more correspondence on this matter, and the officer stated in August 2018 that the fence was a breach of planning control. In further email correspondence, the solicitor stated that the breach of covenant was nothing to do with the Council and the fence was not a breach of planning control. In mid-September 2018, the officer set out the relevant section of legislation based on which she considered that there was a breach of planning control.
26. In October 2018, the solicitor replied that the fence had replaced an existing higher hedge and that other residents had trees over one metre tall. He suggested that the Council was treating Miss B unfairly. He made a formal complaint to the Council in November 2018 which was acknowledged later in December 2018.
27. The Council contacted the solicitor in January 2019 to ask to discuss the matter. Following a conversation, the solicitor provided a letter of authority. The solicitor then contacted the Council in early February 2019 to check progress. The Council responded on 14 February 2019 saying it planned to respond by 21 March 2019.
28. The Council responded to the complaint on 17 April 2019. The investigation did not uphold any part of Miss B’s complaint. It also concluded that the Council had been correct in taking action in relation to the breach of covenant. The solicitors wrote a further letter to the Council before complaining to the Ombudsman
29. In June 2019, the Council’s development management team wrote to Miss B to ask her to either reduce the height of the fence or apply for planning permission. As no action was taken, in July 2019 the planning enforcement team served an Enforcement Notice on Miss B requiring her to reduce the height of the fence.

My assessment

Alleged fly-tipping

30. Miss B’s second solicitors consider that it was necessary for Miss B to engage solicitors because the Council had made an unfounded criminal accusation of fly-tipping against her. They consider that, in doing so, the Council has failed to comply with government guidance because it did not gather appropriate information before threatening action, and that it did not follow the staged approach set out in the Council’s own guidance.
31. The Council first received a report of fly-tipping in November 2017. The report alleged that the perpetrator was a member of Miss B’s household, described the waste and the location. It seems to me that the Council had sufficient information to take action and that the sending of a warning letter was a proportionate response, under its policy, to the information it had received.
32. I note moreover that the officer invited Miss B to call to discuss the letter if she disagreed with any of its contents, so it was open to Miss B to contact the Council directly at that stage. Instead, Miss B instead chose to enlist the support of a solicitor that she knew. That was her choice. When Miss B denied the alleged fly-tipping and the complainants could not fully corroborate the report, the Council told Miss B’s solicitor that it would not pursue this matter further, and so the matter was concluded. I see no fault here, and therefore no reason for the Ombudsman to seek any reimbursement of Miss B’s legal costs in this regard.
33. The Council then received a second report of fly-tipping in a witness statement, with the alleged date of this incident in February 2018. The Council contacted Miss B about this and asked to meet her to discuss the allegations. Given that it had received a witness statement about the alleged incident, it was again entitled to contact Miss B about this.
34. I appreciate that Miss B disagreed with the allegations and the Council’s actions and wished to engage solicitors to represent her. But there was no fault in the Council taking this action, so there are no grounds for the Ombudsman to seek any financial remedy for the Council actions in investigating the alleged fly-tipping.
35. However, under its policy, the Council should have concluded its investigation into the second allegation by writing to Miss B to confirm the outcome. This did not happen because the requested meeting did not take place after Miss B’s new solicitor’s intervention. This was fault, but I consider that an appropriate remedy for this is for the Council now to inform the complainant in writing whether it intends to take any further action.

Alleged breach of covenant

36. The Council wrote to Miss B threatening action on grounds that the construction of a two-metre boundary fence was a breach of covenant on the conveyance on her house. This was fault. The Council was not a party to the conveyance and this matter does not involve or concern the Council. It was wrong for the Council to write to Miss B and threaten action in respect of a private legal matter.
37. Given the inappropriate threat of action in relation to the alleged breach of the covenant, I consider it was reasonable for Miss B to engage solicitors in this regard. I understand that Miss B incurred costs in respect of the second solicitors. I do not know if she incurred costs in relation to the first solicitor or whether he provided this assistance in his capacity as a neighbour / business associate.
38. There was a lack of clarity in the Council’s correspondence with Miss B and her representatives as to whether it was seeking to take action in respect of a breach of covenant or breach of planning control. I do not therefore consider that the discussions on these matters were clearly separable until the Council issued an enforcement notice in respect of the fence in July 2019.
39. I consider that the Council should therefore pay Miss B’s reasonably incurred legal costs in respect of the dispute over the boundary fence up to the point at which the Council issued the planning enforcement notice.
40. I do not however consider that the Council should have to defray any costs relating to discussions about the need for a letter of authority. The Council was entitled to ask the solicitors for a letter of authority.
41. I also do not consider that the Council should have to defray any of Miss B’s legal costs in respect of her complaint to the Ombudsman, because we are a free and easily accessible service.
42. However, I consider that Miss B has been put to time and trouble, and experienced distress as a result of the threatened action in respect of an alleged breach of covenant. I consider that the Council should pay her £100 in relation to her time and trouble and £100 in relation to her distress.

Alleged breach of planning control

43. Miss B’s solicitor considers that the Council has treated Miss B unfairly by issuing an enforcement notice when it has not done so in respect of other householders. He also questions the basis on which the Council has served that notice given that there was previously a hedge there before.
44. However, the Council has issued an enforcement notice and explained its reasons for doing so, namely highway safety. There is a right of appeal to the Secretary of State (represented by the Planning Inspectorate). The Ombudsman would normally expect the recipient of an enforcement notice to use that appeal right. I consider it would be reasonable for Miss B to use her appeal right if she disagrees with the Council’s decision to issue an enforcement notice.
45. As to the suggestion that Miss B has been treated unfairly compared with other householders, councils must generally rely on members of the public to alert them to possible breaches of planning control. Councils do not have the resources and it is not realistic to expect them to undertake enforcement investigations where they do not have reasonable grounds to suspect that there has been a breach of planning control.
46. Therefore, if Miss B considers that there are other cases where the Council should take enforcement action, it is open to her to raise them with the Council and it can then consider what action, if any, is appropriate.

Agreed action

47. The Council has agreed to the Ombudsman’s recommendation that, within one month of the final decision date on this complaint, it will:
• pay Miss B’s reasonable legal costs, as supported by evidence, incurred in responding to the Council’s correspondence about the alleged breach of covenant / planning control up to the time that the enforcement notice was served in July 2019;
• pay Miss B £100 for her time and trouble, and £100 for her distress;
• remind officers in the Community Safety and Enforcement Service that it is not the role of the Council to become involved in private legal matters; and
• tell Miss B if it intends to take any further action in relation to the allegation of fly-tipping in February 2018.

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Final decision

48. I have closed my investigation into Mrs B’s complaint because I consider that the agreed actions represent a suitable remedy for the injustice caused to Miss B.

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Investigator's decision on behalf of the Ombudsman