Summary: Mr B complains the Council has not taken enforcement action against an illegal waste processing site near his home and has not kept him informed about action being taken about the site. The Council is not at fault.

The complaint

1. The complainant, Whom I shall refer to as Mr B, complains the Council has not taken enforcement action against an illegal waste processing site near his home and has not kept him informed about action being taken about the site.

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The Ombudsman’s role and powers

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)
3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

5. I have spoken to Mr B about his complaint and considered the information he has provided to the Ombudsman. I have also considered the Council’s response to his complaint and its response to my enquiries.
6. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

Planning enforcement

7. A breach of planning control is when a development is carried out without required planning permission or when there is a failure to comply with any condition or limitation connected to planning permission.
8. Where there has been a breach of planning control, councils may take enforcement action when it is ‘expedient’ to do so. It is for the council to decide whether it is expedient to take action. Government guidance says “Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)
9. In deciding whether it is expedient to start enforcement action, councils may consider a number of factors, including:
• whether the development is likely to be granted planning permission.
• whether the breach unacceptably harms public amenity.
• whether any enforcement action is proportionate to the breach.
• the need to achieve a balance between protecting amenity and permitting development which is acceptable.

The Council’s enforcement plan

10. The Council has a development management enforcement plan which sets out the policies and procedures the Council will follow. Appendix A sets out the enforcement powers available to the Council. This includes enforcement notices, stop notices, section 215 ‘adverse effect’ notices, prosecution and direct action.

Environmental enforcement

11. In addition to their planning powers, councils can take enforcement action using their powers under environmental protection legislation and regulation.
12. Regulations allow councils to require an environmental permit to control any industrial process that might release pollution to land, air or water. Councils inspect sites to determine how best to control pollution and permits include conditions to this effect.
13. In addition to permitting powers, environmental protection officers (EPOs) have powers under other legislation to stop a nuisance caused by pollution, such as vibration, noise, dust, noxious smells and odours. The Council may serve an abatement notice which will state what the nuisance is and what should be done to stop or resolve it. If the nuisance continues, the Council may take action against the perpetrator in the magistrate’s court.

What happened

14. Land next to Mr B’s home was occupied. The occupier began to use it to process and dispose of waste material.
15. The Council made a number of multi-agency visits to the site of the problems and undertook a range of planning and environmental enforcement action.
16. There was extensive communication between Mr B and the Council until January 2019. Mr B complained to the Council in January 2019. The Council responded to Mr B in mid February 2019 answering his questions. Mr B asked the Council to escalate his complaint. The Council responded to Mr B at stage 2 of its complaint procedure. It did not uphold his complaint.

Analysis

17. The Ombudsman only looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
18. There are complicating factors regarding the land being used to deal with waste because the owner of the land lives abroad, the land crosses a Council boundary and the occupier was aggressive and uncooperative.
19. I have seen evidence the Council has taken a range of planning and environmental enforcement action including:
• Two enforcement notices. The occupier unsuccessfully appealed both enforcement notices. This delayed consideration of further action.
• After the appeals were rejected, the Council served a s215 notice on the occupier.
• The Council has considered prosecuting the occupier but decided not to progress this.
20. In October 2018, the Environment Agency accepted that it had a responsibility for taking action about the problems Mr B complained about.
21. Email evidence from the Council shows it worked well with other agencies. Enforcement action was co-ordinated with Council 2 and there was good communication with the Environment Agency in 2018.
22. Mr B says the Council has not responded to an anti-social behaviour community trigger request. I have seen a letter showing the Council held a review, then wrote to Mr B outlining what action is intended to take. This is consistent with paragraph 17 above. The Council has since written to Mr B explaining its position in response to his complaint.
23. Mr B also sent me an email from the Council saying it would update him about any proposed action by the Environment Agency when it received it. The Environment Agency has not yet completed its investigation and therefore has not determined any action it intends to take.
24. Mr B has sent me an incident diary completed to July 2018. He says the Council has not responded properly to the evidence. The Council has since written to Mr B explaining its position in response to his complaint.
25. I have seen a confidential draft report within the Council which shows the Council is considering further action under its enforcement plan. It appears the Council is waiting for the outcome of the Environment Agency investigation before it makes a final decision about when or how to take further action. The draft report is not public and does not set out any new potential action that hasn’t already been communicated to Mr B.
26. The Council has considered the full range of action contained in its enforcement plan. Planning enforcement action is discretionary. The enforcement plan does not set out timescales in which the Council should make decisions about when enforcement should be undertaken. This is not fault by the Council.
27. The Environment Agency has confirmed it is still investigating these issues. Its investigation has been complicated because the land occupier is in custody. The Environment Agency confirmed that there has been little communication with the Council or nearby residents about its investigation over the past year as a result.
28. The Council’s communication with Mr B was frequent and informative until its stage two complaint response in April 2019. After that time evidence from the Council shows there has been no further information provided to Mr B about any action being taken about the site.
29. On the balance of probabilities, there has not been any progress in the investigation or the Council’s position to communicate to Mr B. This is not fault by the Council.

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Final decision

30. I have not found the Council to be at fault. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman