Summary: Mrs X complains the Council failed to properly deal with the poor condition of a site adjacent to her home. There was some delay dealing with reports she made to the planning department in 2018. This was fault. However, action was being taken by environmental health officers in the period concerned. An environmental health officer and planning officer appropriately considered the further reports Mrs X made from 2019. The Council made an appropriate referral to the Environment Agency. The Council should apologise to Mrs X for the delays in 2018 to remedy the complaint.

The complaint

1. Mrs X complains the Council failed to properly deal with complaints she made about the use and condition of a site adjacent to her home since 2017. The site has been subject to fly-tipping of rubbish, and more recently for temporary storage of construction waste.
2. Mrs X complains there is no permit for the site’s use for construction waste, the activity on the site is dusty, noisy and a fire hazard.
3. Mrs X also raised concerns about the handling of a planning application for the site in 2017.

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What I have investigated

4. I have investigated how the Council dealt with the reports Mrs X made to the Environmental heath team from December 2018. I have not investigated those she made in 2017. I have investigated the actions taken by the planning department from 2018. I have not investigated the concerns Mrs X raised about the planning application decided in 2017. The reasons for this are set out in the last section of this statement.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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

8. I spoke to Mrs X and considered the information she provided. I asked the Council for information and I considered its response to the complaint. I sent a draft decision to Mrs X and to the Council to enable both parties to comment. I considered the comments I received before making a final decision.

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What I found

Background

9. Mrs X’s complaint concerns problems with a plot of land adjacent to her property. She contacted the Council’s planning team and its environmental health team.

Planning 2018

10. Mrs X originally reported concerns about the site in March 2018. These had been assigned to a planning officer, Officer A, but the officer retired in January 2019.
11. On 30 June 2019 Mrs X raised her concerns about the site with a Council Member. She stated it was being used as a dumping ground for building waste. On 1 July, the Council assigned another officer to consider the site, Officer B. However, Officer B left the Council sometime later.
12. The Council appears to have no record of what Officers A and B made of the site or what action was taken between March 2018 and July 2019. It says a system problem may have led to the case being overlooked.
13. In July 2019 Mrs X made a formal complaint and explained she remained concerned about the site. From August 2019, another planning officer (Officer C) was assigned.

Environmental Health 2018

14. I understand Mrs X made reports about the site to environmental health officers in 2017. In December 2018 Mrs X made a further report to environmental health. She stated the site was in a poor condition. She explained building materials, litter and rubbish at the site made it an eyesore.
15. An environmental health officer visited the site on 6 December and agreed the land was a mess and there was litter throughout. They spoke to the landowner and wrote to him. The Council’s letter stated the site had been the subject of fly‑tipping and this included food waste. They stated there was evidence of vermin. The letter stated the landowner was responsible for the condition of the site.
16. The landowner had planning permission to build two, one-bedroomed properties on the site. He told the Council he was in the process of selling the site and in January 2019 the site was sold to a developer.
17. There is evidence the Council gave the owner advice and assistance to move abandoned vehicles from the site in January 2019. In February 2019 Mrs X thanked officers and told them the site was being tidied up. An officer visited to verify this.
18. However, in June 2019 Mrs X updated the environmental health department. She told them the developer now appeared to have moved materials onto the site.

Council Action from August 2019

19. In August 2019 Mrs X stated the site was overflowing with waste and an eyesore. She noted the developer was bringing in commercial waste. She asked if a permit was required and whether this constituted a change of use.
20. Officer C told Mrs X that notices could be issued under Section 215 of the Town and Country Planning Act to require clearance of a site if there was evidence to support it. The officer stated because the developer had tidied the site into a number of skips, it wouldn’t be justified for this site.
21. Officer C liaised with a colleague in environmental health (Officer D) because photographs Mrs X provided suggested an element of fly-tipping at the site in addition to the building materials there. She passed on Officer D’s comments to Mrs X at various points.
22. Officer D spoke to the builder. The builder noted fencing at the site remained in place. This prevented opportunistic fly tipping by other people. The builder stated the site would gradually be cleared and once filled, several skips on the site would be moved off.
23. Correspondence between Officer C and Officer D shows they considered whether fly-tipping was occurring. They decided it was not a fly‑tipping issue, as this was the owner of the land effectively ‘storing’ waste on the site. However, Officer D noted, if waste was being transferred to the site without a waste carrier licence, this could be an offence. He said, however, the builder alleged the previous owner left most of what was on site.
24. On 10 September Mrs X explained the builder did not appear to be using the skips to move the existing material off site. Rather, they were bringing in and dumping more material into the skips and they were overflowing. She invited officers to view the situation from her property as the site appeared to be clearer from the road. Mrs X explained a construction company’s vans were coming virtually every day to dump waste.
25. Officer C told Mrs X that Officer D would take the lead and contact her direct in future, as he had the most relevant powers to deal with the situation. Mrs X felt Officer C and Officer D were passing her between them. She was unhappy they had not taken action. She asked why the planning department had not considered this as a change of use. She stated the officers would not see the extent of the problem from the road, behind the fencing.
26. Officer D visited the site on the same day and contacted Mrs X. He noted there were more skips and he decided there was evidence of waste being imported to the site, as Mrs X had said. He referred the matter to the Environment Agency as a result. The Council provided evidence he did this on 11 September.
27. On 14 September Mrs X updated the Council with further photographs. She explained some waste that had previously been tidied into skips had been removed from them again. The photographs also showed more waste had been brought to site.
28. In September there is evidence Officer C considered whether a Section 215 notice was warranted. She decided at that time it was not as the Council had the agreement of the site owner to gradually reduce the waste and building materials on site. Officer D noted there was no pest control issue and no action was possible under statutory nuisance legislation. The Council says in September, Officer C had also considered requesting a change of use application. However, she concluded, as the use of the site as a waste transfer station was very recent, normal practice would be to make enquiries of the owner before taking action.
29. The builder told Officer D on 17 September that the skips on site would be removed that week. As the builder stated no more waste would be imported, and no further reports were received, Officer D closed the environmental health case and Officer C decided there would be no need for a change of use application. There is no evidence that Officer C explained the Council’s view on potential change of use to Mrs X.
30. The Council says a further complaint was received on 20 January. In response to the January 2020 report, the Council contacted the site owners to remind them they could not bring waste to the site and Environment Agency and Health and Safety Executive could take action if they continued to do so.

Section 215 of the Town and Country Planning Act

31. Section 215 of the Town and Country Planning Act 1990 (‘Section 215’) states that, if it appears the amenity of a part of its area, is adversely affected by the condition of land, it may serve a notice on the occupier. The notice can require specific steps to be taken to remedy the condition of the land within a specified period.
32. The government issued best practice guidance (‘the guidance’) to local planning authorities on how best to make use of their powers under Section 215. The guidance states the use of Section 215 by local planning authorities is discretionary. It is for the authority to decide whether a notice is appropriate in a particular case, taking into account all the local circumstances. These can include the condition of the site, the impact on the surrounding area and the scope of their powers.
33. The guidance states, “‘amenity’ is a broad concept. It is not formally defined in the legislation or procedural guidance, i.e. it is a matter of fact and degree.

Environmental Health Act 1990

34. Local Authorities have a duty to investigate reports of a potential statutory nuisance. Although the law imposes a duty to investigate, the decision as to whether a premises represents a statutory nuisance is one council officers have discretion to take. In doing so, officers should take account of the significance of the issues identified and the impact it has on local people.

Was there fault by the Council

35. Between March 2018 and July 2019, it appears little or no action was being taken by planning officers to consider reports received from Mrs X about the site. An issue with IT systems and a shortage of planning enforcement officers at that time appear to have led to Mrs X’s reports being overlooked. This was fault.
36. However, there is evidence that Mrs X was separately in contact with the environmental health department during 2018. In December 2018 an environmental health officer was in contact with the site owners and his actions led to some improvement in the site in early 2019. This limited the impact of the planning officers not responding.
37. Following further reports from Mrs X, Officers C and D liaised about the site. It is evident that Officer D considered the site, while untidy, did not constitute a statutory nuisance and there were no grounds to take action in respect of public health. There is evidence that Officer C also considered whether it was appropriate to issue a Section 215 notice, requiring the condition of the site to be improved. She felt, because the developer was engaging and complying with contact form Environmental Health, this would not be justified.
38. There is no specific record of Officer C considering change of use at the time the reports were being considered. She did not directly respond to Mrs C’s question about whether a change of use had occurred given the apparent use for bringing in waste. The Council did set out its position in response to our enquiries.
39. Although the Council could have responded more fully to Mrs X’s questions about this, I am satisfied the issue of the developer bringing in waste was not ignored. I say this because Officer D established the activity would mean this was a ‘Waste Transfer Site’. Officer D referred it to the Environment Agency (EA) for them to consider.
40. I understand the EA have a backlog of reports to consider. However, it is correct to say that Waste Transfer Sites are regulated by the EA, so this was an appropriate course of action. However, the Council should continue to monitor the site and to consider action through the powers it has if fresh reports are received that suggests the situation at the site has worsened.

Summary

41. There was fault during 2018 when Mrs X’s reports to the planning department were not acted upon. The Council should apologise to Mrs X for this.
42. However, when Officers C and D considered the situation at the site in 2019, on balance, I am satisfied they properly considered the powers available to them. I understand Mrs X is dissatisfied that no formal action was taken. However, officers have discretion to determine when this is appropriate. They did not consider there were grounds to take formal action in respect of the condition of the site. When the site became a Waste Transfer Site, the referral to the EA was appropriate.

Agreed action

43. Within four weeks of my final decision the Council should apologise to Mrs X for the delay in considering her planning enforcement reports during 2018.

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Final decision

44. There was fault by the Council. As it agreed to remedy this in accordance with our recommendation I have now completed my investigation and closed my file.

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Parts of the complaint that I did not investigate

45. Mrs X brought a complaint to the Ombudsman in July 2019. The Ombudsman expects complaints to be brought within 12 months of someone becoming aware of the issues being complained of.
46. We will not consider the complaints Mrs X made in 2017 or the decision made on a planning application in 2017. This is because There are no good reasons why the complaint about the issues from 2017 could not have been brought to us sooner. I have considered events from 2018.

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Investigator's decision on behalf of the Ombudsman