Section 2: The basis for the determination of the complaint
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In simple terms, when determining complaints that injustice or hardship has been sustained in consequence of maladministration, the Ombudsmen generally begin by comparing what actually happened with what should have happened.
This means that, in addition to establishing the facts that are relevant to the complaint, we also need to establish a clear understanding of the standards, both of general application and those which are specific to the circumstances of the case, which applied at the time the events complained about occurred, and which governed the exercise of the administrative functions of those bodies whose actions are the subject of the complaint. We call this establishing the overall standard.
The overall standard has two components: the general standard which is derived from general principles of good administration and, where applicable, of public law; and the specific standards which are derived from the legal, policy and administrative framework and any professional standards relevant to the events in question.
Having established the overall standard, we then assess the facts of the case against that standard. Specifically, we assess whether or not an act or omission on the part of the body or individual complained about constitutes a departure from the applicable standard. If so, we then assess whether, in all the circumstances, that act or omission falls so far short of the applicable standard as to constitute maladministration. The overall standard which we have applied to this investigation is set out below.
The general standard
The Ombudsman’s Principles
In February 2009 the Parliamentary Ombudsman republished her Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy[1]. These are broad statements of what she considers public bodies should do to deliver good administration and customer service, and how to respond when things go wrong.
The same six key Principles apply to each of the three documents. These six Principles are:
- Getting it right
- Being customer focused
- Being open and accountable
- Acting fairly and proportionately
- Putting things right, and
- Seeking continuous improvement.
The Principles of good administration particularly relevant to this complaint are: ‘Getting it right’, which means that public bodies should act in accordance with the law and with regard to the rights of those concerned, and with their policy and guidance (published and internal), and take reasonable decisions based on all relevant considerations; and ‘Acting fairly and proportionately’, in particular ensuring that the decisions and actions taken by the public body are proportionate, appropriate and fair.
The Principle for remedy that is particularly relevant to this complaint is ‘Getting it right’, which involves the public body quickly acknowledging and putting right cases of maladministration, or poor service, that have led to injustice or hardship, as well as considering all relevant factors when deciding the appropriate remedy, ensuring fairness for the complainant. The key aim of the remedy should be to return the complainants to the position they would have been in but for the maladministration, and where that is not possible, to compensate them appropriately.
The specific standards
Legal and administrative framework
Control and management of waste
Between them, the Agency and the two Councils have various powers that could have been used to prevent what Mr R did on the land. These powers are set out in more detail in Annex A, but broadly the bodies’ powers and responsibilities are as follows.
The Agency are responsible for the system of licenses for the transport, disposal, keeping or treatment of controlled waste which was introduced by the Environmental Protection Act 1990 (the 1990 Act). The Agency are also responsible for prosecutions for the criminal offence of treating, keeping or disposing of controlled waste in a manner likely to cause pollution of the environment or harm to public health.
The County Council is responsible for the control of use of land, or operations in or on land, for the deposit of refuse or waste materials, and for the erection of any building, plant or machinery designed to treat, store, process, or dispose of refuse or waste materials.
The Borough Council is responsible for the control of other uses of land, and other developments on land that require planning permission. It also has powers to take enforcement action to require statutory nuisance to be abated.
Joint working to improve enforcement
A series of protocols signed by the Agency and the Local Government Association set out how waste offences would be dealt with[2]. The purpose of the protocols was to ensure effective co-ordination between the waste control bodies. This was made clear by Sir John Harman, the then chairman of the Agency, who said: ‘Action that is not coordinated and directed to a common purpose is unlikely to be of much value[3]’.
The protocols set out how it should be decided which body should deal with different types of waste control problem. In general, the Agency should take responsibility for large-scale illegal tipping, and local councils deal with smaller, isolated incidents of fly tipping. The protocols also recommend that the Agency and local councils should form local agreements on how they should work together to respond to illegal waste activities.
The role and responsibilities of the Agency
The Agency’s main statutory powers to control waste on land are found in Part 2 of the 1990 Act. (The licensing provisions were recently changed by the Environmental Permitting (England and Wales) Regulations 2007, but what follows describes the provisions up until 8 April 2008.) Part 2 of the 1990 Act gives the Agency the powers to:
- licence ‘fit and proper’ persons involved in the deposit, disposal and keeping of controlled waste in or on land[4];
- impose conditions and require the licensee to carry out works or do other things it deems necessary to protect the environment[5]; and
- prosecute someone for dealing with waste without a licence or for not meeting the conditions of a licence[6].
Section 71 of the 1990 Act gives the waste regulation authority the power to issue a notice requiring people or authorities to provide such information as the regulation authority reasonably considers that it needs for the purpose of discharging its functions. It also sets out the potential consequences for those who fail, without reasonable excuse, to comply with such a requirement; or who, when complying, make any statement which they know to be false or misleading. These include a fine or imprisonment for a term not exceeding two years, or both.
Waste management exemptions
A Waste Management Licence (WML) is not needed if the waste involved is exempt under the Waste Management Licensing Regulations 1994 (WMLR 1994). In relation to this investigation at the time of the events complained about the most relevant exemptions were:
- spreading wastes for use in agriculture[7];
- spreading of soil, rock, ash or sludge, or construction or demolition waste in connection with land reclamation or improvement in accordance with a planning permission[8]; and
- storage on a site of waste from demolition, construction, tunnelling or other excavations to be used on the site (within three months if the waste is brought to, rather than produced on, the site)[9].
The Agency’s Enforcement and Prosecution Policy
The Agency’s Enforcement and Prosecution Policy (EAEPP) sets out their powers and how they will use them. The EAEPP also describes how the Agency should work with local government and other regulators.
The purpose of the Agency’s enforcement function is to protect the environment and to secure compliance with the regulatory system. It says that, although the Agency expect full voluntary compliance with relevant legislative requirements and licence provisions, they will not hesitate to use their enforcement powers where necessary[10].
The EAEPP sets out a presumption of prosecution where any of the following occur[11]:
- where there is a serious consequence to the environment;
- carrying out operations without a WML;
- excessive or persistent breaches of regulatory requirements;
- failure to comply with formal remedial requirements;
- failure to supply information without reasonable excuse or supplying misleading information; or
- obstruction of Agency staff.
The EAEPP says that, where the Agency and another enforcement body have the power to prosecute, the Agency will liaise with that other body to ensure effective co-ordination, to avoid inconsistencies and to ensure that any proceedings are instituted for the most appropriate offence[12].
The roles and responsibilities of the local authorities
Planning enforcement
Planning permission is generally required to change the use of land and/or to develop on land. Some changes and developments specified in the General Permitted Development Order are ‘permitted’ without needing specific permissions. If development or change of use of land that is not covered by the General Permitted Development Order occurs without planning permission, planning authorities can take enforcement action.
The County Council is the planning authority for waste and minerals issues and, therefore, the only authority with the power to take enforcement action against use of the land for the storage or disposal of waste and/or against unauthorised development of the land for those purposes[13].
The Borough Council has no planning enforcement powers in relation to use or development of the land for waste storage and disposal operations. It does have power to enforce against unauthorised change of use of the land and any development of the land not permitted under the General Permitted Development Order for the existing agricultural or residential use of the site.
Town and Country Planning Act 1990
The Town and Country Planning Act 1990 (TCPA 1990) sets out what a planning authority should do if it becomes aware of a breach of planning control in its area[14]. The full details are included in Annex A.
Government guidance explains the approach a planning authority should take if an unauthorised development is unacceptable and relocation is not feasible[15]. It quotes from a Government White Paper, which says:
‘If people ignore or flout laws and regulations designed to protect the public from serious harm, they should be punished properly.[16]’
Section 183 of the TCPA 1990 allows a local authority to serve a stop notice requiring activities that are subject to an enforcement notice to stop immediately. Failure to comply with a stop notice can result in summary conviction and fines of up to £20,000, or an unlimited fine if convicted on indictment. However, if the related enforcement notice is not upheld on appeal or is varied or withdrawn, a council may have to pay compensation for any financial loss arising from a stop notice.
The County Council’s Planning Enforcement Policy
The County Council’s Development Control Group’s Enforcement Policy[17] says:
‘We investigate all complaints about planning breaches at … waste management … sites. If no permission exists for a development … we shall seek to rectify the matter.’
The policy allows for discretion, as it says:
‘Immediate formal enforcement action would usually only be taken if the breach was likely to cause significant harm to the environment or local amenity … We shall only use formal enforcement action where negotiation has failed, as a last resort.’
The policy goes on to say:
‘If it [the County Council] chooses not to pursue enforcement action, the reasons for not doing so will be made clear and conveyed to the complainant.’
The policy also sets out how the County Council will monitor progress if it decides to issue an enforcement notice to a landowner or developer:
‘We will visit the site regularly to monitor progress. If we find the rate of progress on site is unlikely to meet the requirements of the notice by the specified date, we will inform the landowner or developer of the problem and the likely consequences of the delay. If the developer fails to comply … we will consider prosecution.’
Highways
As the Highways Authority, the County Council has a duty to: ‘assert and protect the rights of the public to the use and enjoyment of any highway’, and ‘to prevent as far as possible, the stopping up or obstruction of – (a) the highways for which they are the highway authority[18]’.
Until autumn 2004 the County Council had appointed the Borough Council to act as its agent to carry out this duty. The County Council monitored the performance of the District Councils under agency agreements. Such monitoring was carried out three times a year and required the District Councils to report the number and category of complaints, and what proportion had been resolved in a particular time span.
Environmental protection
The Borough Council is required under the 1990 Act to inspect its area for, and investigate complaints about, statutory nuisance, which can be (amongst other things) smoke, fumes, dust, steam or smell that is prejudicial to health, or a nuisance[19].
If satisfied that a statutory nuisance exists, or is likely to occur or recur, the Borough Council is required to serve a notice requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence[20].
Footnotes
[1.] The Ombudsman’s Principles is available at www.ombudsman.org.uk/principles/
[2.] Working better together, 2000, 2003 and 2005
[3.] Working better together, July 2000
[4.] Section 35, the 1990 Act.
[5.] Section 35, the 1990 Act.
[6.] Sections 33(6) and 34, the 1990 Act. See Annex A for details of these prosecuting powers and the relevant penalties.
[7.] Paragraph 7 of WMLR 1994.
[8.] Paragraph 9 of WMLR 1994.
[9.] Paragraph 19 of WMLR 1994.
[10.] Paragraph 6, EAEPP, Version 1 (01.11.98).
[11.] Paragraph 28, EAEPP, Version 1 (01.11.98).
[12.] Paragraph 33, EAEPP, Version 1 (01.11.98).
[13.] Town and Country Planning (Prescription of County Matters) Regulations 1980, SI 2010.
[14.] Section 55(3) of the TCPA 1990.
[15.] Planning Policy Guidance PPG18, (December 1991).
[16.] CM 965 1990, Crime, Justice and Protecting the Public.
[17.] Lancashire County Council, Development Control Enforcement Policy.
[18.] Highways Act 1980 section 130, as amended by section 63 of the Countryside and Rights of Way Act 2000.
[19.] Section 79, the 1990 Act.
[20.] Section 80, the 1990 Act.
