Section 3: Investigation

During the investigation, our investigator examined the papers and records held by the Agency, the County Council and the Borough Council in relation to the events complained about. Interviews were also conducted with a number of officers from each of those bodies who had been involved at the time, and there have been many exchanges and discussions with Mrs D and her son. The Local Government Ombudsman visited the site with a police escort. Consideration has also been given to the comments made by the Agency’s Chief Executive and both Councils in response to Mrs D’s and her son’s complaint, and in response to our specific enquiries. We have also taken account of comments received from all three parties complained about, and Mrs D and her son, in response to sight of our provisional report in coming to our decision.

We have not included in this report all of the information considered in the course of the investigation, but we are satisfied that nothing of significance to the complaint or our findings has been omitted.

Key events

A detailed chronology of events is set out in Annex B. It is likely that this is not a complete record because the County Council no longer holds any records of its involvement prior to October 2003. Further, the Agency’s records which predate the introduction of their computer record system would also appear not to be comprehensive. In addition, in a number of instances, even where it is evident that certain meetings took place, no record was made by any of those involved of either the discussion or the outcome.

For ease of understanding, a brief summary of the key events follows.

In May 2000, shortly after moving to the farm neighbouring Mrs D’s and her son’s property, Mr R began substantial excavation and engineering work on the site, bringing wagons, skips and containers on to the land. The Borough Council responded promptly and wrote to Mr R on 31 May 2000 warning him that he had to cease that work immediately as he did not have planning permission. In July 2000 the Borough Council’s Planning Enforcement Officer visited the site and reiterated that the development should cease immediately and that Mr R should apply for planning permission, but told him that it was unlikely he would get it.

From the summer of 2000 Mr R was tipping and burning waste from the skips that he brought to the site. He used some waste as hard core for hard standings (some of which he concreted over) for the skips and wagons. He also cleared an area of land and created earth ‘bunds’ around it (subsequently referred to as ‘the burning pit’). The Agency began to receive reports of illegal tipping and burning of waste on the site. Agency officers visited the site five times at the end of July and beginning of August 2000 and found evidence of tipping and of the culverting (covering over) of a stream. They gave Mr R until 28 August 2000 to remove the waste. However, nothing more seems to have happened until November 2000, when Agency officers visited the site twice in response to further complaints about tipping and burning. They spoke with Mr R and his solicitor; Mr R denied importing waste and asked for clarification of what waste he could legitimately bring on to the land and about WML exemptions.

Aware that Mr R had applied to the Traffic Commissioners for a licence to operate skip lorries from the site, in November 2000 the Borough Council’s Planning Manager sent an objection to the Traffic Commissioners, saying:

‘The site, located as it is in a remote upland rural Green Belt location, along unadopted narrow, otherwise quiet lanes, is inappropriate for such a commercial use by reason of the noise, fumes, pollution, vibration and visual intrusion. The proposed operating centre is unsuitable … [because of] … heavy recreational use by walkers and horse riders.’

The Borough Council, the County Council and the Agency met at the end of November 2000 to discuss their response to Mr R’s activities. It seems that it was agreed that the Borough Council would take the lead.

In January 2001 the Borough Council served Mr R with four planning contravention notices, requiring him to remove all the skips and vehicles, and all imported and tipped material, and to re-seed the land. Mr R appealed against the notices to the Secretary of State, claiming the development was for agricultural use^[21]. Over the next six months numerous incidents of tipping and burning at Mr R’s site were reported to the Agency’s National Incident Recording System (NIRS), and the Fire Brigade attended two fires on the site.

On 1 March 2001 a footpath closure order was introduced across the country following the outbreak of Foot and Mouth Disease.

In April 2001 the Borough Council’s Environmental Health Officer completed a statement for the planning appeal saying:

‘From the far side of … the lodge and between this building and … farm approximately 75m away the smell of burning and the drifting of smoke was obvious. The burning smell was putrid in character and carried the odour of decaying refuse, reminiscent of a tip fire as opposed to wood, coal or building rubble … On the left hand side to the rear of a storage shed an area of earth banking approximately 25m in length had been excavated to form a hearth for burning. This is where the smoke and odour described earlier originated. There was evidence of mixed refuse being burnt.’

On 24 May 2001 a second meeting was held between the two Councils and the Agency, but again no note was made of the discussion or outcome. Agency officers visited the site again, but on 5 June 2001 told the Borough Council that they had no evidence that what Mr R was doing was illegal, but that they were monitoring the situation. The following day the Borough Council served Mr R with a fifth planning contravention notice requiring him to remove all skips, containers, skip wagons and other vehicles from the land. The Borough Council then employed a Consultant Planner to work on the enforcement action being taken against Mr R, and his appeals against those.

In June 2001 the Traffic Commissioners granted Mr R a restricted operator’s licence (three vehicles only), allowing him to use the farm as an operating base for his haulage/skip business with the condition that there should be no loading or unloading of unauthorised vehicles on the site.

In August 2001 the Borough Council’s Planning Manager found the public footpath to be blocked by a guard dog on a chain. He took some photographs of a fire, various machines, skips and containers and was confronted by a man who threatened him and demanded his camera. The Planning Manager recorded in a statement at the time:

‘After a period of exchanges I attempted to phone for assistance at which point he grabbed hold of my arm and snatched my mobile phone out of my hand, breaking the strap to my wrist. He said if I didn’t give him the camera he would throw the phone into the reservoir to the north.’

The man did throw the mobile phone into the reservoir and then manoeuvred a skip lorry to block in the Planning Manager’s car. Mr R then arrived and said he did not own the field where the fire was burning, and then told the other man to take the keys out of the lorry.

When the Agency subsequently telephoned the Planning Manager to discuss the activities on Mr R’s land, which they said they were investigating, he told them that Mr R had largely complied with three of the first four planning contravention notices and that the only outstanding issue was the reinstatement of the burning pit area.

From August 2001 onwards the Borough Council received numerous complaints from neighbours and walkers that Mr R was obstructing footpaths and rights of way, and intimidating anyone who objected by aggressive, threatening and foul-mouthed behaviour.

A letter of complaint in 2001 from a visitor from Australia, returning to the area after 21 years, commented:

‘[To] my horror, the area has been desecrated. The area near the waterfall is a construction site, with burning rubbish, earth moving equipment, noise, mud, and from memory, trees removed. I was devastated when I saw the mess. What is happening? … should be a conservation area, not a place where people are allowed to do what they want.’

When Mr R failed to respond to a warning about obstructing the footpath, the Borough Council’s Rights of Way Officer asked its solicitor to initiate legal proceedings against Mr R. Despite a reminder from the officer and numerous further complaints, no further action was taken.

The Land Registry records show that ten months after the Borough Council served the original enforcement notices, the land subject to two of the notices (the burning pit) was sold on 16 October 2001 to a Mr M of Eire, for £500. Only the most general of addresses is given for Mr M, which is ‘Main Street’ followed by the name of a village. Mr M’s solicitors for the purchase were based in Bury, Lancashire.

The Borough Council’s former Environmental Health Officer was warned by the Agency, during a telephone conversation in October 2001, that their officers only visited the site in fours – two to do surveillance and two to intervene if there was any threat of violence.

In November 2001 the Consultant Planner working for the Borough Council (see paragraph 58) told Mr R’s representative that Mr R had stopped storing skips, wagons and other containers and removed the culverting over the stream; more time would be given for him to remove material imported to the site and to return the land close to its original, natural state. He added that the Borough Council would be pursuing the notice requiring the land to be returned to its original condition. The next month the Borough Council issued Mr R with a further notice requiring him to restore the land to its original condition and a stop notice requiring him to stop removing top soil, cease excavations, and laying hard core, crushed stone and concrete.

The Agency, meanwhile, had continued to receive reports of tipping and burning, and continued to visit or observe Mr R’s land, but recorded that they did not witness waste being imported and were unable to determine what was being burnt. On 22 January 2002 in response to a further complaint, two Agency officers visited the site and photographed the tipping of controlled waste. Mr R refused to let them leave the site unless they surrendered the camera film, which they did. Mr R told them that neither the lorry that was tipping the waste, nor the land on which it was being tipped, belonged to him, although he had used some hard core materials to create a hard standing for a silage store. The Agency subsequently prosecuted Mr R for obstructing the officers that day.

Following a third joint meeting between the Borough Council, the County Council and the Agency in February 2002 about Mr R’s activities, the Agency conducted further surveillance. In April 2002 the Agency wrote to the Borough Council saying that, although there was evidence of unauthorised waste operations on the land, it was not possible to identify those responsible. They added that the material deposited by Mr R was for the maintenance of the access road, and therefore exempt from the requirement for a WML, and the other dumping and burning of waste was on land no longer owned by Mr R.

Mr R’s appeal against one of the Borough Council’s planning enforcement notices was heard by a Planning Inspector in May 2002. Mr R argued that the skips, containers and vehicles were for agricultural purposes.

The Planning Inspector’s report notes that, at the time the original enforcement notices had been served, there had been no agricultural activity on the site but that, between serving the notices and the appeal, Mr R had brought some animals onto the farm albeit at that time ‘at the scale of a hobby rather than a commercial operation’. The Borough Council conceded that there was evidence of some current agricultural use.

The Planning Inspectorate dismissed Mr R’s appeal but varied the enforcement notice so that it only enforced against using land for skips and vehicles and against the hard standings that were not ‘reasonably required for agriculture’. The Planning Inspector gave Mr R six months to comply and told him that he would have to justify how much of the hard standing could remain. Mr R had not appealed against the other enforcement notices and the stop notice.

In July 2002 the Consultant Planner working for the Borough Council concluded that it would only be feasible to prosecute Mr R for failing to comply with the planning enforcement notice that related to the burning pit restoration. He therefore proposed to Mr R’s representative that Mr R should withdraw his outstanding appeals and restore the site. Mr R agreed, but did not restore the site.

In November 2002 the Borough Council noted that the agricultural use of the land had ceased and that Mr R was again bringing skips and wagons loaded with waste onto the land in breach of the enforcement notices. It threatened legal action if he did not stop immediately.

In January 2003 Mr D wrote to the Borough Council saying that Mr R’s illegal activities continued unabated, and complained about the Council’s failure to take appropriate action. The Borough Council decided to seek injunctions to restrain Mr R.

The files show some frustration amongst planning officers. In June 2003 the Planning Manager sent an email to the Borough Council’s legal department saying:

‘Our failure to take action against Mr R as we have both promised and threatened exposes us to even more criticism than the other authorities who have been even less diligent in pursuing their powers against this serial breaker of any and everyregulation in existence.’

And again, a few days later:

‘I feel that we are failing Mr D. As you will be aware from my previous calls, memos and emails I am extremely concerned that we have not yet taken any action against R. I understand that you have all the information you require to proceed with a prosecution. When will it occur?’

The County Council’s Land Agent was subsequently asked to advise on the extent of any agricultural use and a private solicitor was retained, but little progress was otherwise made before October 2003, when Counsel advised that more fresh evidence of frequent and persistent breaches of planning control was needed, and that joint action with the County Council and the Agency would improve the chances of a successful prosecution. In the intervening time Mr R’s breaches had become ever more flagrant, including the tipping and burning of fridges and washing machines.

From then on there were intermittent attempts on the part of the three bodies to co-ordinate their action in order to gather sufficient evidence for a successful prosecution against Mr R. There were further meetings in November 2003 and February and April 2004, and the County Council agreed to join with the Borough Council in its legal action. However, there is no evidence that this proposed legal action progressed any further, and very little evidence, despite continuing complaints by Mrs D and her son and others, of attempts by either Council to try and prevent Mr R’s activities.

As for the Agency, their records show that, although covert surveillance and visits to the farm by their officers led to their having ‘good evidence’ of waste tipping and burning, the Agency felt that they had insufficient evidence that that waste had been imported, and had not been generated on the farm. They also accepted that some of the other tipping by Mr R on the land was to maintain the access road and would therefore be exempt, were Mr R to apply for an exemption. As a result, for over two years from April 2004 onwards the Agency did little more than: keep reminding Mr R that he needed a WML or an exemption in order to tip waste; point out that he had not applied for an exemption; tell him how he could apply for one; and warn him of the consequences if his illegal action continued. Eventually, in July 2006, after witnessing on several occasions fresh deposits of controlled imported waste, the Agency asked Mr R to attend an interview under caution, which he refused to do. He was finally cautioned in February 2007 and prosecuted in June 2008. In the meantime, the Traffic Commissioners had revoked Mr R’s Heavy Goods Vehicle operator’s licence in June 2007, and a bankruptcy order had been issued which led to the land being taken over by his bank.

The Agency’s comments on the complaint

In her comments on the complaint the Agency’s then Chief Executive said that Mr R had been a cause for concern to the Agency for a number of years. The Agency were aware of his activities and of his lack of respect for his neighbours and for the environment. The challenge that the Agency had faced was in gathering sufficient evidence to prosecute him for his alleged illegal activities without unduly jeopardising his neighbours.

The farm in question was remote and with a single access road which had affected the Agency’s surveillance activities, and which had meant that Mr R had been aware of their monitoring activity and had modified his behaviour accordingly. The Agency had used considerable manpower and resources over several years to carry out surveillance and monitoring at the farm as set out in the chronology.

The Chief Executive said that the Agency recognised that, historically, they had been overly cautious in ensuring that their intelligence and evidence of offences committed was of a very high quality in order to achieve a significant result in terms of prosecution. They also accepted that this approach had not achieved the desired outcome, either in terms of environmental protection or individual prosecution. She said that the Agency’s approach to enforcement had changed from 2007 onwards, and that that revised regulation approach would result in action being taken more quickly, as had been shown in this case.
The Chief Executive went on to say that, whilst there had been numerous incidents relating to Mr R’s farm logged on their incident database (NIRS), it was important to note that none of them had been assessed as ‘major’ or ‘significant’. In response to the report by the Fire Brigade on 23 August 2003 of their attendance at a fire on the site, when an estimated ten tons of waste, including refrigerators, had been burnt, an Agency officer had visited the fire a few days later and saw no evidence of illegal activity. Similarly, a covert surveillance operation carried out over the following month had witnessed no illegal activity.

Turning to Mr R’s other activities at the farm, it was evident that a considerable amount of concreting had taken place there, and a brook adjacent to the farmhouse had been culverted. The concreting of the hard-standing area for the storage of commercial vehicles and the excavation of the trees from around the site fell outside the Agency’s remit. However, the culverting of the brook was a matter for the Agency, and it had been agreed with the Borough Council on 30 November 2000 that the Borough Council would serve notice on Mr R to rectify the problem, which it had done, requesting re-instatement by 6 February 2001. The Agency officers had met Mr R in January 2001 when he had indicated he would comply, but expressed reservations about the timescale for doing so.

However, the outbreak of Foot and Mouth Disease had meant that countryside visits had not been undertaken for a number of months. The notice did not appear to have been complied with and the Borough Council had subsequently taken legal action.

Turning to the concerns Mrs D and her son had raised about the local water supplies (paragraph 1), the Agency’s Chief Executive said that there were two water data monitoring points in the vicinity of the farm and that the recordings at those points in 1997 and 2007 had been of good quality, and had shown no significant trends. She was pleased, therefore, to be able to report that their concerns in that respect were unfounded.

The Agency’s Chief Executive concluded by saying arrangements had been made for the local area manager to visit Mrs D and her son and apologise for not having taken swifter steps to remedy the situation.

Further evidence from interviews with Agency officers

Our officers interviewed a number of Agency officers who had been involved at some point with the events in question, and in particular the field officers who visited the site. Those involved in the early stages told us that they believed that there had been covert Agency surveillance operations in relation to the site before those shown in our attached chronology, but that the records of those no longer existed. (It appears that a large number of relevant documents, including records of visits, officers’ notebooks and investigation forms and decisions, went missing when the area office closed in April 2002 and staff moved to the regional office.)

One of the then Special Enforcement Officers said that there had also subsequently been the problem over the ownership of the small plot of land on the site on which the main tipping and burning was taking place. Although the Agency had issued section 71 notices (paragraph 29) to Mr R and Mr M to try and get the evidence about ownership, Mr M’s solicitors had told them that they had lost the relevant file relating to the purchase of the land. The officer said that section 71 notices were generally used to establish specific information which could then be used as the basis for an interview. However, if a person incriminated themselves in their response to such a notice, it could be ruled inadmissible by the court.

The officer went on to say that there had been a general assumption that the waste brought to the site had originated from Mr R’s waste transfer site, but no surveillance- or records-based exercises had been carried out to confirm that suspicion. A key difficulty was that lots of activities on agricultural land were lawful, and the first stage was therefore to identify whether the waste would be exempt if an exemption had been applied for, and whether it was old or new waste. Further, they needed evidence about the waste being tipped ‘from cradle to grave’ in order to prosecute successfully. To do that they would have to inspect the site, calculate the level of waste, and accurately record all the waste going in and out in order to be able to say how much was being moved.

As for why no legal action had been taken earlier, officers said that it had not been normal practice at the relevant time to use injunctions, although that practice had since changed. They gathered evidence for a prosecution instead. However, it had also been the practice to get evidence of each stage of the contravention, the vehicle going onto the land, seeing it on site, and witnessing the tipping. They said that the Agency had been reluctant to prosecute at that time unless they could prove that the keeper of the waste (the person on whose land the waste had been tipped) had been involved with the actual tipping. Further, because of previous experience of trying to take action against Mr R, they wanted to make sure that there was no possible defence that he could successfully put forward; they wanted to have an ‘open and shut’ case so that he would plead guilty. They considered that there was no point asking drivers for sight of the waste transfer notes to show where the waste had come from and was going to (Annex A, paragraphs 7 and 8), as these would simply have been produced after the event. But in any event, it was unheard of at that time to pursue such matters.

Another key problem, they said, had been the difficulty in mounting successful surveillance because of the limited access to the site, which meant that Mr R would generally know when they were around and were observing from a distance. They might see a lorry going on site, but the farm itself was not really visible. At the time agricultural waste was not controlled, and some of the other waste seen on site could be exempt if it was legitimately being used to build a hard standing or roads, for example. They were therefore looking for mixed waste which could not be exempt, as they did not want there to be any dispute in court. Although it was still an offence for Mr R to bring waste which could have been exempt onto the site without such an exemption, the fine for that was around £10 at the time and it was not therefore cost-effective to pursue. An additional problem, they said, was that the health and safety issue identified (the fact that Mr R and others on site could be aggressive) meant that they aimed always for there to be four officers carrying out surveillance.

The then team leader of the relevant Agency Enforcement Team said that the outbreak of Foot and Mouth Disease had caused the Agency access difficulties and that he believed that Mr R had used this as an opportunity to import as much waste as he could. He went on to say that in his view they had adopted a cautious approach based on experience. What was, and was not, waste was a greyish area, and they would therefore have only taken legal action if they or the Council officers had actually witnessed the depositing of the waste on site. It had to be remembered that this was happening on a farm, and that to all intents and purposes, agricultural waste was not at that time controlled, and the burning and depositing of it was not an offence. That did not mean that they thought Mr R’s activities were legal, but that they ‘stepped back’ and made sure that they had considered every possible defence he might raise before taking legal action. The delay was therefore due to caution when dealing with someone who knew the legal system; this was all the more important because of the concerns of local residents about harassment by Mr R. The Enforcement Team had put the evidence on the obstruction case to the solicitors in early 2002 but they had not heard anything back from them by the time the team leader had moved to a new job on a different site in September 2002. He added, however, that it had been his intention to prosecute Mr R for depositing just as soon as the obstruction case had been heard, as he felt that they had sufficient evidence by then. He had been very surprised to learn that that had not happened.

Turning to the question of liaison with other bodies, Agency officers expressed a variety of views as to why there had apparently been little attempt to co-ordinate action to prohibit Mr R’s activities. One officer gave the view that they did not want to duplicate or infringe upon the Councils’ activities, and the Agency could have ‘messed up’ the Councils’ own investigations. Another said that a difficulty with joint working was that there had been no formal agreement in place as to who would do what. The then Enforcement Team leader said that joint operations were simply not carried out at that time.

The Borough Council’s comments on the complaint

The Borough Council pointed out that:

• it had strenuously objected in 2001 to Mr R being granted a licence to operate HGVs from the farm, but the Traffic Commissioners had granted Mr R a licence;
• Mr R’s appeal to the Planning Inspectorate against the enforcement notice regarding the change of use of the land from agriculture to storage of skips, containers etc had delayed enforcement action, and the subsequent variation made to the notice by the Planning Inspector made prosecution more difficult;
• the inaction of the Agency and the County Council left it with no choice but to try to deal with a situation for which it had the least relevant and effective enforcement powers and the least resources;
• its difficulties at the time in achieving adequate standards in most areas of its responsibilities and activities were well documented and it has worked hard to achieve improvements;
• the Borough Council’s officers had visited Mrs D and her son in late 2005 to explain why the Council thought that it had done all it could, why prosecution on their part was unlikely to be successful, and why the tipping and burning of refuse, and the failure to remove illegally tipped refuse, were matters for the County Council and the Agency; and
• the actions of the Borough Council in obtaining an injunction against Mr R (obtained in Blackpool County Court) led directly to him leaving the site.

Further evidence from interviews with the Borough Council’s officers

Our investigators interviewed several of the Borough Council’s officers. One officer, who had been involved from the outset, said that the Borough Council had involved the Agency and the County Council in November 2000 because it was clear that there were major waste disposal and management issues on the site in question. He had felt disappointed that they had shown little interest in the matter at that meeting.

Another officer emphasised the difficulties posed by the Planning Inspector’s report following the appeal, followed by the apparent sale of the piece of land to Mr M. Although officers had believed the sale to be a sham, they did not see how they could trace Mr M to be able to take planning enforcement action against him. As for taking further action in respect of the enforcement notices, Counsel had told them that their evidence was too old and suggested that the only way to ensure success was a joint approach with the Agency and the County Council. Neither had seemed keen to be involved, and the Agency in particular had seemed ‘anxious not to be there’. This made it very difficult for the Borough Council as tipping and burning waste was the key issue (rather than the hard standings and keeping skips, vehicles and containers on the land). Only the Agency and the County Council could deal with control of waste operations and planning enforcement on land used or developed for waste.

A private solicitor acting for the Borough Council explained why the evidence that had been gathered had been insufficient:

‘[We] needed evidence to act on such as dates and times, the worst event of all, the last time it happened etc. We didn’t have this basic information. We just had an overview of what had gone on, but it was too vague to go to Court. They established a prima facie case, but they needed to beef it up and prepare for Court … This didn’t happen.’

The Borough Council’s Environmental Health Officer said that there was evidence of statutory nuisance but she had not served a notice (paragraphs 45 and 46) because the fumes were a transient by-product of the main problem, which was that the site was being used as an illegal waste station. She had been called out several times and she had recorded and photographed vehicle movements and offered them to the Agency officers, who had said that they needed to collect their own evidence. She had tried to involve the Agency, for example calling them when there were fires burning, but they had always said that they could not attend.

The Borough Council’s then Rights of Way Officer until August 2002 said that he had felt that there was a general reluctance at that time to take proceedings, and although notices were sometimes served, matters had never been taken to court. The Borough Council had almost got to the point of taking proceedings against Mr R when he had indicated that he would co-operate. He did not think that any formal decision had been taken to discontinue the court action, rather that the planning issues had taken over. The Rights of Way Officer said that he had asked the County Council to have a look at what was going on. Insofar as he could remember, the County Council had said that there was nothing it could do because the obstruction had not been serious enough.

The County Council’s comments on the complaint

The County Council initially said that it had few records because it had not been involved with the Borough Council’s planning enforcement proceedings in 2001 and 2002, and had only become aware of the problems at the farm after it received an email from the Borough Council’s then Planning Manager in October 2003.

The County Council went on to say that, once it had been made aware of the problems on the site, it had acted quickly and very proactively to address the matter of unauthorised importation and deposit of waste. It said that regular visits and meetings had subsequently taken place and the unauthorised activity had then diminished to the extent that planning enforcement action by the County Council had not been necessary. It added that its Environment Director had always responded to reports and complaints made by Mrs D’s son and would continue to do so. It concluded that a programme of monitoring of the site, in conjunction with the Agency, would continue until it was no longer considered necessary.

Our investigator found a letter in the back of the County Council’s file marked ‘Misc Documents from Rossendale’, dated February 2002 and confirming a meeting that month. The letter is headed with the name of the site and was not placed in date order on the file. It is stamped as being received by the County Council and being passed to the Enforcement Officer and Head of Planning. After our investigator showed the County Council the evidence he had found, it accepted that a former enforcement officer had been involved, possibly from 2000 onwards. It accepted that the paperwork detailing that officer’s site visits, photographic evidence and records of any meetings with the Borough Council and the Agency should have been on file, and were not.

As a result, the County Council could not say whether records had not been made, or had been made and subsequently lost. It said that an improved system for recording complaints and retaining records of investigations was now used and should ensure that information was retained on complaints and enforcement cases.

The County Council went on to say that, in the absence of the relevant records, it was difficult to establish what had occurred in those early years from 2000 to 2003; and whether it had not been proactive because it had relied on the Agency or the Borough Council. Mr R’s activities had subsequently reduced significantly and the situation had improved from 2004 onwards; and since then the proactive approach adopted had led to improvements to the site, obviating the need for planning enforcement action. The County Council pointed out that Government guidance (Planning Policy Guidance, note 18 – PPG 18), encourages resolution through either enforcement notices or negotiation, without the need to resort to legal action.

In respect of the rights of way issues when the Borough Council was acting on the County Council’s behalf, the County Council said that the Rights of Way Officer had taken prompt action in response to the numerous complaints starting in August 2001. He had visited the site, and written to and visited Mr R in order to make clear what remedial action was required. The Rights of Way Officer had then at the end of September 2001 asked the Borough Council’s solicitor to prosecute Mr R in the Magistrates’ Court. Over the next months until April 2002 the Rights of Way Officer had continued to forward new evidence to the Borough Council’s solicitor, but had then, in a letter dated 12 April 2002, appeared to indicate that a resolution to the problems might be achievable with the co-operation of Mr R. The County Council said that it could easily take a number of months to put a strong prosecution case together. Unfortunately, it was not clear from the papers whether or not the problems being experienced at that time had been resolved by the agreed action of the landowner or not.

The County Council said that its monitoring of the Borough Council’s performance, as agent for the County Council as Highways Authority, had not been designed to pick up individual cases, unless the Borough Council had specifically brought the matter to the County Council’s attention. There had been a procedure whereby interest groups, such as the Ramblers’ Association, could report dissatisfaction with a District Council’s performance to the County, and this would be followed up. Neither of those instances had happened here. However, when the Rights of Way Officer left the Borough Council in 2002, there had been no permanent replacement. After some discussion, the Highways Agency agreement had ended in autumn 2004. At that stage the County Council had become aware of the continuing problems relating to the site, which had continued to 2008.

Additional evidence from interviews with the County Council’s staff

The Ombudsmen’s investigators interviewed several of the County Council’s officers. The original Planning Enforcement Officer involved, whose records were missing, said that his post had been new and intended to establish an enforcement function. He recalled that the problems at Mr R’s site involved waste disposal and burning, and he thought that they had continued for about a year. He could only recall one significant meeting with both the Borough Council and the Agency, which he claimed had been set up at his request to try and sort out the problem and ‘all the confusion’.

The former Planning Enforcement Officer said that he had visited the site probably around 20 times over a year. He said that there was a lot of work in dealing with waste matters, because it involved different authorities. In some instances it was better if the Agency dealt with these matters, because the offences under their legislation were more severe and carried greater penalties. He had met Mr R at the site in relation to complaints about Mr R having culverted a stream and completed some other excavation works. However, those were matters for the Borough Council – not the County Council. He added that there had been clear warning signs that the farm would become a skip storage/industrial use site.

The former County Council Enforcement Officer went on to say that he had worked with the Agency to tackle the issue of burning on the site, because if they stopped the burning, they would stop the trips to the site. The Agency had set up observations, but because of the difficult access to the site, their presence was obvious and so every time they set those observations up activity on the site would cease. They would then leave the site, and the next day there would be more reports of tipping and burning. That had been very frustrating.

Asked why no enforcement notices had been issued, the former County Council Planning Enforcement Officer said that the objective was to solve the problem, and simply issuing notices would not have done that. The smoke was a matter for the Borough Council’s Environmental Health Team, waste incineration was for the Agency, and the use of the land for depositing and incineration would be a planning matter for the County Council. Mr R was already committing an offence which was for the Agency to prosecute, and he had understood that the Agency were intending to pursue a prosecution when his involvement came to an end. However, only wood was being burnt, and that was not processing waste. There had been an allegation made by the Borough Council that inert waste had been tipped on the site. The County Council’s advice was that the Borough Council would be unable to enforce the notices it had issued, because it had no evidence of what the land had been like before. He had told the Borough Council that its notices were too imprecise and that the County Council could not therefore take the case from it. The former officer said that he had not returned to the site because, as far as he was concerned, the very narrow issue of burning was being tackled by the Agency. There would be no added value in the County Council just issuing another enforcement notice. He said that it was important for the different authorities not to duplicate the use of their powers, because having too many different people involved would simply muddy the waters. As far as the County Council was concerned, therefore, the matter was at an end as the Agency were pursuing a prosecution for burning waste and the Borough Council would be gathering further evidence, including monitoring the changes to the land levels and the activity on site.

The Head of Planning said that he had only become aware of the problems on this site in October 2003. He said that there had been no reason for him to suspect that the Borough Council had contacted the County Council earlier because, had it done so, the County Council would have had no reason not to respond. When shown the records of the numerous complaints made by local residents and the notices issued by the Borough Council, he said that he found it bizarre that he had not known about these earlier, as it was clearly the County Council’s responsibility to investigate waste planning control. He said that he also could not understand why the Borough Council had served notices on what was essentially a County Council matter. Had he known at the time, he added, he would have followed the guidance in PPG 18 (paragraph 106). When importation of waste was an issue he would have expected the County Council to monitor the position continuously, and for some time after the activity had ceased, to ensure that it did not recur.

The County Council’s Land Agent said that he had originally been contacted by the Borough Council in April 2001 asking for his support with Mr R’s appeal against a planning enforcement notice. Then in August 2001 the Borough Council had telephoned saying that it had reached agreement with Mr R and no longer required a statement. However, in April 2002 he was told that the appeal was going forward again. As Mr R had claimed the developments were for agriculture, he was asked to inspect the site to evaluate whether that was indeed the case.

The Land Agent said that he had seen around 15 cattle on site and Mr R had told him that he was going to expand the herd. The Land Agent explained that development for agricultural use could be justified on an intention, as well as on existing agricultural use. The Land Agent said that he had felt that the concrete area had been excessive, as there was no need for storage on that scale, but it was difficult to be categorical and so his response to the Borough Council had been vague on this point. His statement about agricultural use for the planning appeal hearing had had to be similarly inconclusive. He had subsequently visited the site again in 2004 when it was evident that there had not been any agricultural use of the land for some time.

Evidence from Mrs D and her son

Mrs D and her son told us that their lives had been made unbearable by these events. Mr D had had a nervous breakdown because of the stress of living next to what was, in fact, an unauthorised waste disposal operation and because of Mr R’s aggressive and intimidating behaviour. The situation had become so desperate that during the course of this investigation, they had decided to put their home on the market and had even contemplated accepting an offer of around £100,000 less than the property’s value in order to try and escape. However, that sale had fallen through. Once Mr R had left the property it was still difficult to sell their home because of the condition that the site had been left in – attracting further illegal activity, including arson and further waste tipping.

Footnote

[21.] And therefore permitted under paragraph A, Part 6, Schedule 2 to the General Permitted Development Order 1995.

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