Summary
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The complaint
Mrs D and her son complained that the Environment Agency (the Agency), Lancashire County Council (the County Council) and Rossendale Borough Council (the Borough Council) had failed to take appropriate action against their neighbour, Mr R, who was tipping, burying and burning large quantities of waste illegally, blocking public footpaths and intimidating anyone trying to use them. Mrs D said that the activities of her neighbour have made the landscape, which had been a local beauty spot, unrecognisable; made it impossible for her and her son to live peacefully in their family home; and may well have caused long-term damage by polluting the land and local water supplies.
The Ombudsmen’s remit, jurisdiction and powers
General remit of the Parliamentary Ombudsman
The Parliamentary Ombudsman’s remit is set out in the Parliamentary Commissioner Act 1967. Her role is to investigate complaints referred to her by a Member of Parliament that an individual has sustained an injustice in consequence of maladministration by a body within her remit. In this instance, that body is the Agency.
If the Parliamentary Ombudsman finds that maladministration has resulted in an injustice, she will uphold the complaint. If that injustice is unremedied, in line with her Principles for Remedy she may recommend redress to remedy any injustice that she has found.
General remit of the Local Government Ombudsman
Under the Local Government Act 1974 Part III the Local Government Ombudsman has discretion to investigate complaints of injustice arising from maladministration by local authorities and certain other public bodies. In this instance the local authorities concerned are the County Council and the Borough Council.
If the Local Government Ombudsman finds that maladministration has resulted in an injustice, she may recommend redress to remedy the injustice.
Powers to investigate and report jointly
The Regulatory Reform (Collaboration etc. between Ombudsmen) Order 2007 clarified the powers of the Parliamentary Ombudsman and the Local Government Ombudsman, with the consent of the complainant, to share information, carry out joint investigations and produce joint reports in respect of complaints which fell within the remit of both Ombudsmen.
In this case, the Parliamentary Ombudsman and the Local Government Ombudsman agreed to work together because the Agency and the two Councils have between them the powers to regulate and control waste operations and the use and development of land. The authorities are expected to co-operate in carrying out those functions. It therefore seemed to the Ombudsmen that a joint investigation, leading to the production of joint findings and conclusions, which could take a view about the relative responsibilities of each of the public bodies involved, was the most appropriate way forward.
The decision
We have fully upheld Mrs D’s and her son’s complaint and have found that maladministration by all three bodies complained about has caused Mrs D and her son considerable injustice over a very lengthy period. We consider that the agreement of those three bodies to our recommendations would provide an appropriate remedy for the injustice that they have suffered.
Findings
We find that the failure of the three authorities to work together effectively allowed Mr R to break the law unchecked over a long period. Mr R’s illegal activities took place virtually continuously for the first three to four years (when the majority of the tipping and burning took place), and then recurred regularly over several more years.
Findings of the Parliamentary Ombudsman in respect of the Environment Agency
The Parliamentary Ombudsman finds that the Agency had monitored Mr R’s illegal activities from July 2000 onwards and frequently warned him of the consequences if he continued to import controlled waste onto the site. However, it was only after seven years of illegal activity and after Mr R had stopped working at the site, that the Agency took him to court for the unlawful deposit, disposal and keeping of waste on the site.
The Parliamentary Ombudsman finds that the Agency’s failure to take immediate, robust and continuing action to use their powers to stop Mr R’s illegal tipping and burning was maladministration of the worst kind in the form of a clear breakdown of accountability on the Agency’s part, which has had significant consequences for Mrs D and her son and for this area of the countryside.
The Parliamentary Ombudsman is satisfied that, had the Agency investigated fully and appropriately what was happening on the farm and used the powers at their disposal to take action, they could and should have brought about a much earlier and successful conclusion to the problems experienced by Mrs D and her son. The Parliamentary Ombudsman finds that the significant delay in prosecution, the Agency’s failure to consider Mrs D and her son’s position, and their right to the peaceful enjoyment of their home, were serious failings that constituted clear maladministration.
Findings of the Local Government Ombudsman in respect of Lancashire County Council
The Local Government Ombudsman finds that there is a significant amount of important and relevant information that is missing from the County Council’s records and that it is not possible to determine whether the County Council’s records are missing because they were never properly recorded, or whether they have since been lost or misplaced. Whatever the reason, the Local Government Ombudsman finds the failure to have that key information available constitutes maladministration.
The Local Government Ombudsman finds that the extent and nature of Mr R’s activities clearly warranted attention at a senior level within the County Council and the lack of records means that we cannot know why the situation was not given that attention. However, the Local Government Ombudsman considers that it is reasonable to assume that there was inadequate supervision and management of the Enforcement Officer’s functions which meant that the County Council failed, over a period of over three years, to reach a properly considered decision on whether it should take enforcement action. The Local Government Ombudsman finds this to constitute very serious maladministration.
The Local Government Ombudsman considers that, had the County Council given the matter proper attention, it would have used the full extent of its powers to prohibit Mr R’s unlawful use and development of the land for the storage or disposal of waste. This failure contributed significantly to the distress, frustration and inconvenience suffered by Mrs D and her son over a number of years.
The Local Government Ombudsman finds that, on the balance of probabilities, the County Council was aware that a footpath on Mr R’s land was being obstructed but it failed to take appropriate action. In the absence of any evidence that the County Council made a reasoned decision on this issue, the Local Government Ombudsman finds such a failure was maladministration.
Findings of the Local Government Ombudsman in respect of Rossendale Borough Council
The Local Government Ombudsman finds that the Borough Council failed to keep appropriate records or retain important information. The Borough Council’s files and records were in a considerable state of disorder – records of meetings were missing, photographs and other important documents were undated, documents were loose inside files and kept in no particular order, and records of referrals to, and early meetings with, the other bodies were not adequate. The Local Government Ombudsman finds this failure to record and retain important information constitutes maladministration.
The Local Government Ombudsman accepts that the Borough Council cannot be held responsible for the failure of the County Council to respond to the issues on Mr R’s land. However, the Borough Council cannot show that, prior to October 2003, it applied consistent and appropriate pressure on the County Council to take action. The Local Government Ombudsman finds that failure is maladministration.
The Local Government Ombudsman also finds that although the Borough Council attempted to take enforcement action against Mr R on the less significant issues that came within its powers, it did not do so effectively. Furthermore, the Borough Council failed to use other powers it had at its disposal effectively to take action against Mr R. It was within the Borough Council’s power to prosecute Mr R for the burning of waste, which was a statutory nuisance and was likely to recur. The Borough Council failed to use its powers in a properly co-ordinated way and this failure constitutes maladministration.
The Local Government Ombudsman finds that, if there had been proper co-ordination and a considered decision, action on the rights of way issue might have continued following August 2002. The power to carry out that function was delegated to the Borough Council by the County Council. Initially the Borough Council dealt promptly and appropriately with the complaints that were made, however, the action being taken appears to have been halted when Mr R indicated that he would co-operate. When Mr R did not co-operate as he had indicated, no further action was taken by the Borough Council.
Injustice
We have no doubt that the failure of all three bodies concerned to work together effectively to prevent the activities on Mr R’s land has had, and indeed continues to have, a devastating effect on both Mrs D and her son. Whilst the authorities in question cannot be held responsible for Mr R’s aggressiveness and intimidation of Mrs D and her son, it is equally clear that Mr R’s attitude towards them stemmed from the many complaints that they were compelled to make. Had the authorities acted as they should have done, there would have been no need for Mrs D and her son to complain, and therefore no reason for Mr R to seek to intimidate them, or be aggressive towards them. We are, therefore, satisfied that the maladministration we have identified on the part of all three public bodies has led to Mrs D and her son suffering extreme distress over a very lengthy period.
We accept that Mrs D and her son felt so distressed and unhappy by the horrendous situation that they found themselves in, living next to what was effectively an unauthorised waste site, that they tried to sell their home and move away during the course of these events but that potential purchasers were put off by the activities on Mr R’s land. We commissioned a report on the value of Mrs D’s and her son’s property from the District Valuer to aid the identification of actual financial loss arising from the maladministration. The District Valuer’s report shows a very clear and continuing impact on the value of Mrs D and her son’s property caused by the existence of the neighbouring redundant waste site. The District Valuer assessed the difference between the actual current value of the property and its value if there were not an adjacent redundant waste site as £35,000.
Recommendations
The Parliamentary Ombudsman and the Local Government Ombudsman have made five recommendations in relation to Mrs D’s and her son’s complaint so that the three public bodies involved in this complaint can remedy the injustice caused to Mrs D and her son as a consequence of their combined maladministration:
(a) The bodies in question should all individually write to Mrs D and her son to apologise to them for the failings identified in this report.
(b) The bodies should make good any financial loss to Mrs D and her son resulting from the maladministration. The financial loss is the difference between the actual current value of Mrs D’s and her son’s property and its value if there were not an adjacent redundant waste site, according to the District Valuer this is £35,000. The bodies should pay this amount to Mrs D and her son.
(c) The bodies should also pay financial compensation for the considerable distress and inconvenience caused to Mrs D and her son. We consider that the public bodies should have been able to resolve the issues within about two years, but instead the disruption for Mrs D and her son went on for at least another five years. We consider that an appropriate sum would be £60,000.
(d) In order to prevent a recurrence of such events in future, the County Council and the Agency should put in place a joint agreement on how they will work together to respond to illegal waste activities.
(e) The bodies should each determine whether any other action, individually or jointly, is required to prevent a recurrence of such events, not only on this site but elsewhere.
In recognition of the fact that the bodies have different levels of responsibility in these matters, and of the fact that the Borough Council did far more than the Agency or the County Council to try and fulfil its responsibilities, we recommend that the Agency and the County Council should each contribute 45 per cent of the overall sum of financial compensation (recommendations (b) and (c) above), and the Borough Council should meet the remaining 10 per cent.
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