The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s decision not to enforce against a farmer’s slurry lagoon.
There is not enough evidence of fault in the Council’s decision-making process to warrant an investigation. Even if there has been fault, the impacts of the Council’s decision not to enforce do not cause Mr X, or other nearby residents, sufficient significant injustice to justify us investigating.
The complaint
Mr X chairs a group of local residents. He complains the Council: has failed to enforce against a slurry lagoon built by a local farmer, despite it breaching planning regulations; gave irrelevant reasons for refusing to enforce.
Mr X and the residents’ group have concerns about the lagoon’s impact on residents and the risk to the environment. He says there is likely to be serious harm to local amenity from the development and impacts on residents’ quiet enjoyment of their properties due to ammonia, odour and flies.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating; or any fault has not caused injustice to the person who complained; or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information from Mr X, online maps, and the Ombudsman’s Assessment Code.
My assessment
Planning authorities may take enforcement action where they identify a planning control breach. They are required to investigate claimed breaches, but use of their enforcement powers is discretionary and it is for the authority to decide whether it is expedient to use its powers in each case. National government’s guidance on planning enforcement in the 2019 ‘National Planning Policy Framework’ says: ‘Effective enforcement is important to maintain 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.’ Councils as planning authorities have different options to respond to planning control breaches, from taking no formal action to issuing an Enforcement Notice.
We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. So we consider the process councils have followed when making their decision.
In response to reports about the lagoon, officers gathered information about its location and current use, and assessed it against the relevant planning regulations and government guidance. They determined the lagoon breached planning requirements. However, officers noted it was not in use as a lagoon to store slurry. They decided enforcement action is not expedient because there were no impacts from the creation of the lagoon. Officers gathered the relevant information to investigate the breach and inform their discretionary decision not to enforce. There is not enough evidence of fault in the Council’s decision-making process here to justify us investigating. We recognise Mr X disagrees with the Council’s decision not to take further action and instead wants the Council to do an odour impact assessment and take proactive, preventative steps to manage the situation now. But it is not fault for a council to properly make a decision with which someone disagrees.
We note Mr X says an officer gave irrelevant reasons for not enforcing during a telephone call. But the reason for the Council not enforcing here is because the slurry lagoon is not in use. It relied on this reason for its discretionary enforcement decision, as provided in its written responses to Mr X’s complaint, not on the contents of a telephone call.
Even if there has been fault in the Council’s enforcement process, we would not investigate. There is insufficient significant injustice caused to Mr X or others by the Council’s decision not to enforce or take other action to justify investigation. This is because the lagoon is not currently in use to store slurry. We recognise Mr X and other residents are concerned about future impacts being caused if the lagoon did come into use, such as loss of amenity from odours, ammonia discharge and flies. But those are potential injustices which have not happened. We cannot base an investigation on injustices which have not occurred. Concern about what may happen is not itself a sufficient significant injustice.
Final decision
We will not investigate Mr X’s complaint because: there is insufficient evidence of fault in the Council’s enforcement decision‑making process to warrant an investigation; and even if there has been such Council fault, the impact of the Council’s decision not to enforce does not cause him or others sufficient significant injustice to justify an investigation.
Investigator's decision on behalf of the Ombudsman