Summary: Mr X and Mrs Y complained the Council failed to complete action previously agreed with the Ombudsman about a slurry lagoon and remain uncertain about its planning status and have suffered avoidable frustration and inconvenience in pursuing the matter. We have found fault by the Council but consider the agreed action of an apology, £300 symbolic payment and commitment to providing regular updates is a suitable remedy.

The complaint

1. The complainants, whom I shall refer to as Mr X and Mrs Y, complain the Council has failed to complete action agreed with the Ombudsman in relation to a previous complaint remedy. This was to establish if the location of a slurry lagoon was in accordance with any relevant approved plans and, if not, whether it benefitted from permitted development rights within three months of the Ombudsman’s decision in July 2021.
2. Mr X and Mrs Y say they remain uncertain about the planning status of the lagoon and have suffered avoidable frustration and time and trouble in pursuing the matter.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’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

5. I read the papers provided by Mr X and Mrs Y and discussed the complaint with them. I have also considered some information from the Council. I have explained my draft decision to Mr X and Mrs Y and the Council and provided an opportunity for comment.

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What I found

Key events

6. The Ombudsman previously investigated a complaint from Mr X and Mrs Y. As a result of that investigation the Council agreed several actions towards the end of July which included the following:

• take such action as necessary to establish if the location of the slurry lagoon Mr X reported is in accordance with any relevant approved plans and, if not, whether it benefits from permitted development rights within three months of my decision.

7. My previous decision statement set out Mr X’s assertion the Council had provided planning application details for a slurry lagoon from 2017 which did not relate to the site he was concerned about.
8. The agreed action was due to be completed by the end of October 2021 and the Ombudsman sought an update in early November. The Council apologised and explained due to staffing issues it had only just visited the site and measured the slurry lagoon which appeared larger than it should be. The Council confirmed it was reviewing the findings from its site visit and would take any necessary action as a result.
9. The Council wrote to the owner in mid-December to seek regularisation of the lagoon through a reduction in size or a planning application. The Council wrote to Mr X and Mrs Y towards the end of December with an update.
10. The Council contacted the owner towards the end of April as it had not received a planning application or confirmation of works. The Council provided an update to Mr X and Mrs Y in April to advise it had provided further time for the owner to submit an application but if no application was received it would refer the matter to its Planning Committee for consideration of enforcement action.
11. Mr X and Mrs Y sent several emails to the Council between early and mid-June seeking an update. The Council responded towards the end of June and apologised for not replying to the earlier emails and confirmed the matter was ongoing and it would provide an update in due course.
12. Mr X and Mrs Y emailed the Council in mid-July to complain about the Council’s response and ongoing delay. The Council confirmed it had been pursuing informal action to resolve the issue and was considering next steps.
13. Mr X and Mrs Y wrote to the Council in early August seeking an update and sent a reminder email in mid-August. The Council sent an acknowledgement and then a more substantive response towards the end of August. The Council referred to its previous correspondence and explained it had sought a planning application or changes to the slurry lagoon and was now referring the matter to its Planning Committee for a decision about whether it was expedient to take enforcement action. The Council confirmed it would provide the date of the relevant Planning Committee in due course.
14. The Council emailed Mr X in mid-September 2022 to confirm the matter would be considered at the Committee at the end of the month. The Council provided a link to the Committee papers which included details of the slurry lagoon. Mr X immediately responded to the Council to highlight it was referring to the wrong site and referred to the previous information he had provided about the correct site and its location.
15. The Council subsequently acknowledged it had been reviewing the site of the slurry lagoon previously granted planning permission in 2017 but which was not in accordance with the approved plans. The Council also acknowledged Mr X had provided plans with his original complaint but it could not locate these and asked him if he could provide details of the location of the lagoon. Meanwhile the Council confirmed it would make enquiries about land ownership. The Council apologised for any confusion.
16. The Council visited the correct site towards the end of October. The owner considered the works were lawful as they had been completed more than 10 years ago. The Council sought evidence to support this assertion.
17. Mr X and Mrs Y wrote to the Council at the end of October seeking copy correspondence with the landowner. The Council confirmed at the start of November that it could not provide a copy of the correspondence but that it referred to a site visit.
18. The Council contacted the owner in November to confirm it required either a Lawful Development Certificate (LDC) application or planning application for the lagoon. The Council chased the owner in early December. The owner’s agent confirmed a LDC would be made. The Council provided an update to Mr X and Mrs Y.
19. The Council chased the agent in January 2023. The Council received a LDC application for the continued use of the land as a slurry lagoon towards the end of January. The Council at the time of responding to the Ombudsman confirmed this application was being considered and it had sought legal advice. Any enforcement action was on hold pending the outcome of the LDC application.

My consideration

20. Based on the information provided there is clear delay and a failure to properly complete the action previously agreed with the Ombudsman. The Council agreed it would take such action as necessary to establish if the location of the slurry lagoon Mr X reported was in accordance with any relevant approved plans and, if not, whether it benefitted from permitted development rights before the end of November 2021. The Council failed to do so.
21. My previous decision statement highlighted Mr X’s concern that the planning application the Council had referred to in its correspondence did not relate to the site he had reported. Despite this information and the detailed information Mr X had also provided about the ownership and location of the lagoon the Council visited the wrong site and spent eleven months taking action in respect of a wholly different slurry lagoon.
22. It was not until the Council provided details of its Planning Committee meeting in September 2022 that Mr X and Mrs Y were made aware of this fault. This caused understandable frustration to Mr X and Mrs Y which was exacerbated by the Council seeking further details of the location of the lagoon Mr X had previously provided but which it appears the Council has lost.
23. I note the Council has now confirmed the location of the correct lagoon and confirmed it does not benefit from permitted development rights and so would have required planning permission. I further note the owner has now applied for a LDC to regularise the situation. The position was not established until the end of 2022 and has taken over 12 months longer than it should have done given the information available to the Council in July 2021.
24. I am satisfied this fault has caused Mr X and Mrs Y a significant amount of avoidable frustration and inconvenience.

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Agreed action

25. The Council has agreed the following action to provide a suitable remedy to Mr X and Mrs Y:
1. write to Mr X and Mrs Y to apologise for the fault identified in my statement within one month of my final decision;
2. pay Mr X and Mrs Y a symbolic payment of £300 to recognise their frustration and inconvenience within one month of my final decision; and
3. ensure Mr X and Mrs X receive regular updates about the LDC application and its outcome and any further action in relation to this matter as appropriate.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman