The Ombudsman's final decision
Summary: Mr X complained the Council has failed to take appropriate enforcement action in relation to mounds of soil dumped against his boundary which should have been removed by early 2023. The Council’s failure to keep Mr X updated regarding significant developments in this matter, as agreed, is fault. This fault has caused Mr X an injustice.
The complaint
The complainant, whom I shall refer to as Mr X complained the Council has failed to take appropriate enforcement action in relation to mounds of soil, which may be contaminated, dumped against his boundary.
The Planning Inspectorate dismissed an appeal against the Council’s enforcement notice and the material should have been removed from the site by early 2023. Mr X complains the material is still there and the Council has not taken any action to ensure it is removed or to prosecute the landowner.
The Ombudsman’s role and powers
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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)
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Mr X; made enquiries of the Council and considered the comments and documents the Council provided; Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Background
This is Mr X’s second complaint to the Ombudsman about the Council’s failure to take appropriate action in relation to this deposit of soil near his home. Our previous investigation found there was significant delay by the Council in issuing an enforcement notice requiring the removal of the soil. We recommended the Council pay Mr X £100 for his time and trouble and provide him with regular updates or meetings when there were significant developments in the case.
Current complaint When the Council issued an enforcement notice Mr X’s neighbour, Mr Z, appealed to the Planning Inspector. The Planning Inspector dismissed the appeal and upheld the enforcement notice. Mr Z had three months to comply with the notice by removing the soil and restoring the land levels.
Mr X contacted the Council towards the end of this three-month period as he was concerned no works had taken place. He was concerned there was no documentation setting out how the works would be carried out or monitored, or how the removed soil would be tested for contamination and disposed of.
The Council reminded Mr X it was the Planning Inspectors decision and it was for them to impose any conditions they considered reasonable, necessary, and enforceable. The contamination condition required that if contamination was found it was to be reported. The Council suggested if Mr X was concerned there was a health and safety issue he report it to the Health and Safety Executive. It also confirmed it would be checking compliance.
As Mr Z did not comply with enforcement notice Mr X contacted the Council and asked it to take enforcement action and notify him of progress. The Council confirmed it would update Mr X after it had visited the site.
Mr X also asked the Ombudsman to investigate his complaint. We referred the matter back to the Council to investigate under its complaints process in the first instance.
Officers made an unannounced visit six weeks later to check for compliance. They noted there had been no work to remove the soil and the land levels remained unaltered. The Council then wrote to Mr Z’s agents asking for confirmation the works would be carried out in the following two months. It said that if the works were not carried out in full it would refer the case to its legal services to prosecute Mr Z.
As the Council did not receive a response it contacted the agents again a month later and advised that if the work was not carried out the Council would proceed to prosecution. The agent confirmed Mr Z would carry out the works within this time frame.
The Council contacted Mr X to update him and advised an officer would be visiting the site to check for compliance. Mr X was unhappy about the delay in taking enforcement action. He was also concerned about a lack of detail in the enforcement notice about how the works would be carried out, and asked how the Council would monitor the site prior to, during and after works were completed.
The Council told Mr X it was enforcing the decision of the Planning Inspector who had not required any documentation to be submitted prior to the works commencing. It confirmed it was monitoring the situation and would keep him updated of any developments.
In response to Mr X’s complaint the Council disputed his suggestion it had not taken any action to progress the matter. It noted officers had visited the site and spoken with Mr Z to agree a timeframe for the removal of the soil and that officers would visit again to confirm compliance. The Council again confirmed it would update Mr X following this visit. Mr X say he did not receive this letter. There appears to be a typographical error in the email address the Council used for Mr X.
Officers visited the site again as planned and noted Mr Z had still not complied with the notice. The Council told Mr X it would now refer the case to its legal services for prosecution for non-compliance.
Following further communication with Mr Z the Council subsequently decided not to proceed with the legal action at that time. The Council did not inform Mr X of this decision.
Several months later Mr X contacted the Council chasing a response to his complaint. As he did not receive a response, Mr X again asked the Ombudsman to investigate his complaint.
At around the same time the Council contacted Mr Z to advise him it would need to visit to carry out a compliance check. The Council then wrote to Mr X to update him. It acknowledged the land had not been restored to the previous levels and that the case remained open and it was pursuing compliance. The Council explained that due to confidentiality it was unable to give Mr X a specific update or provide further information.
In response to my enquires the Council acknowledges it should have updated Mr X at an earlier stage, even if it was unable to give any reasons for the continuing delay. It says it should have told Mr X it was deferring instructing its legal services to commence prosecution for reasons it could not disclose. The Council apologises for the failure to keep in touch with Mr X more regularly.
The Council says it contacted Mr Z’s agents again in early 2024 who confirmed the work would be completed within the next month. When an officer visited the site the following month they noted the required works had not been completed. The Council has now referred the case to its legal services. It considered Mr Z has been given plenty of time to comply with the notice but has failed to take any steps to remove the material piled up against Mr X’s boundary. The Council will update Mr X as soon as a court date has been confirmed.
The Council acknowledges our previous investigation recommended the Council update Mr X whenever there were significant developments. And that it should have told him of the decision to defer prosecution proceedings. It would like to apologise for failing to update Mr X on the progress of this case more regularly and has offered to pay him a further £100 for his time and trouble in pursuing this complaint.
Mr X maintains that that engineering operations required to restore the land levels require careful management and monitoring and that it was the Council’s responsibility to oversee this. He feels he has been treated unfairly by the Council in relation to his neighbour’s failure to comply with building control over several years and says this has had a detrimental effect on his health and wellbeing.
Analysis It is disappointing that despite agreeing in resolution of Mr X’s earlier complaint to provide regular updates, this did not happen. While I accept the Council could not provide full details of the reasons for its decision to defer prosecution, I would expect it to notify Mr X of this change in position.
The Council’s failure to keep Mr X updated regarding significant developments in this matter is fault.
The documentation provided suggests there were also periods of delay or inactivity on the part of the Council. The Council did not visit the site to check compliance with the enforcement notice until two months after the deadline had passed. In addition, having decided to defer prosecution proceedings the Council’s records show it took no further action for over four months. The Council asked then Mr Z to provide documentation and chased his response two months later.
I recognise the Council has now referred the case to its legal services to commence prosecution proceedings but consider it could have taken this decision earlier.
The Council has offered to apologise to Mr X and pay him £100. I consider this to be an appropriate resolution. I would also expect the Council to provide Mr X with regular updates on the progress of this case.
Agreed action
The Council has agreed to: apologise to Mr X for the failure to provide regular updates on the progress of this case. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
pay Mr X £100 to recognise the uncertainty and time and trouble he has been put to as a result of the failure to provide regular updates; and provide Mr X with regular updates on the progress of this case.
The Council should take this action within one month of the final decision in this matter and provide us with evidence it has complied with the above actions. Draft decision
Final decision
The Council’s failure to keep Mr X updated regarding significant developments in this matter as agreed is fault. This fault has caused Mr X an injustice.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman