Section 4: The findings of the Local Government Ombudsman and the Parliamentary Ombudsman

Overview

The lack of comprehensive and appropriate records makes it very difficult for us now to identify exactly why the relevant authorities failed to take urgent and robust enforcement action, despite the very evident unauthorised and unacceptable activities taking place on Mr R’s farm. Each of the authorities concerned failed, to some extent, to keep adequate records of their involvement in these matters, including records of their dealings with each other. As a result, we have been unable to find any clear reason for their failure to work together in line with the protocol between the Agency and the Local Government Association (paragraph 26). That protocol, and the Agency’s prosecution policy, clearly required a co-ordinated joint approach on waste enforcement. Because, as the former Chairman of the Agency recognised (paragraph 26), action that was not so co-ordinated and directed towards a common purpose was unlikely to be effective. In this instance, the consequence of that was a cataclysmic failure of all the safeguards introduced by Parliament to protect citizens and the environment from uncontrolled waste operations.

The failure of the three authorities to work together effectively allowed Mr R to continue to break the law unchecked over a long period. Anyone seeing the evidence of what happened on that land, and of the devastation wrought on this beauty spot, would be justifiably shocked and outraged that, despite all the legal safeguards in place, such events could actually happen. 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.

The County Council disputes that illegal activities took place continuously and regularly during this early period. The County Council says it had seen no evidence to substantiate this allegation.

We have seen a great deal of persuasive evidence on the files of the Borough Council, the Agency and elsewhere, which includes dated photographs and accounts of large mounds of waste and smouldering fires from 2001 onwards. It would have assisted us and the County Council itself if it had not misplaced its own file for this period, which we understand included similar evidence. We therefore consider that that failure to work effectively together was a very serious one, and was clearly maladministration.

What the existing evidence (Annex B) does show is that various spasmodic efforts were made by the three authorities charged with the control of waste and the protection of the environment to share their intelligence of Mr R’s activities and discuss a potential joint approach. The authorities met four times in the first four years. However, none of those meetings resulted in concerted, effective and united action. Furthermore, for some reason which cannot now be fathomed, they seem to have agreed at the first meeting that the Borough Council would take the lead. That was a quite extraordinary decision given that the key issue was that of Mr R bringing onto the land, and then burning or burying, large amounts of waste. The responsibility for tackling that issue fell squarely within the remit of the Agency as the strategic waste management body and the County Council as the Waste and Minerals Planning Authority. Of all of the authorities involved in these matters the Borough Council had the least relevant powers. We therefore consider that the failure of either the Agency or the County Council to take the lead in tackling Mr R’s activities was maladministration.

We will now look at each of the public bodies individually.

The Parliamentary Ombudsman’s findings in respect of the Agency

The chronology at Annex B clearly shows that the Agency were fully aware from two months after Mr R moved to the farm (26 July 2000) that he was alleged to be tipping, and subsequently burning, controlled waste illegally on his land. They themselves saw the waste the next month and instructed Mr R to remove it. Over the following years the Agency’s records (which are incomplete as apparently many relevant documents went missing when the staff moved to the regional office in August 2002) show that they received a large number of complaints about Mr R’s activities and made numerous visits to the site (usually in teams of four officers). They conducted regular surveillance of the land, including, on at least one occasion, covert surveillance. Yet despite the fact that the Agency’s enforcement policy includes guidance on the presumption of prosecution, the first time that they cautioned Mr R for importing and processing controlled waste was in February 2007, and the prosecution followed in June 2008. How could that possibly happen?

I note that in her response, the then Chief Executive said that the Agency recognised that, historically, they had been overly cautious in their approach (paragraph 83) in order to try and always achieve appropriate prosecutions. However, they also accepted that this approach had not achieved the desired outcome, either in terms of environmental protection or individual prosecution. Having seen all the evidence (including the photographic evidence) of what happened here, I consider that to be a significant understatement of the position. I find 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 more than mere caution: it 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. I explain why that is in more detail below.

A failure to properly investigate or take effective action

As I have indicated, in my view the Agency’s response and reaction to Mr R’s activities point to far more than mere caution. I note that the officers interviewed (paragraphs 89 to 95) identified a variety of reasons why it would have been difficult to get the evidence necessary to mount a successful prosecution. They also said that they would need clear evidence to support each stage of the offence (paragraphs 91 and 92) in order to ensure an ‘open and shut’ case.

To get that evidence, it is clear that they would have needed to ask for a waste transfer note for each lorry carrying waste visiting the farm, and check the lorries leaving. They would also have needed to take samples from the tipping area to identify the sort of waste being burnt or buried, as they said that they could not identify what was being burnt from a distance. They would also have needed to attend the site immediately when told that tipping and burning was actually happening. Yet they did none of these things. Indeed, I note that they said that there would be little point in asking for the notes (paragraph 92) as they would simply be created after the event. Further, when they visited the farm, sometimes days after tipping had been reported, they said that they had not actually seen the waste being tipped and could not therefore verify that it had been imported. Even when Agency officers did eventually witness the tipping of controlled waste on two occasions, no prosecution for the deposit of waste followed (presumably because the ‘other stages’ of the offence had not been witnessed). It would appear, therefore, that the officers were not at all clear as to what evidence they should have been looking for. The Agency’s failure to act suggests to me that it is possible that the previous dealings they had had with Mr R had created a belief amongst some officers that they would never be able to prosecute Mr R successfully. As a consequence, it seems probable that they decided that the matter was not a priority for them, and failed to conduct the sort of robust and comprehensive investigation that might otherwise have been conducted. This certainly appears to have been the impression that the barrister advising the Borough Council reached (Annex B – 23 February 2004). As a result they seemed content simply to continue to monitor Mr R’s blatant activities over several years and keep reminding him of the legal position and of the need to apply for exemptions – a situation which I find astonishing.

I find the former Chief Executive’s comment (paragraph 84) that none of the incidents relating to Mr R’s farm logged on their database were assessed as ‘major’ or ‘significant’ also somewhat alarming. It is clear that most others outside the Agency – including the Fire Brigade and the Environmental Health Officer – considered that incidents such as the burning of refrigerators and washing machines were major, and warranted the Agency’s attention. Indeed, having seen the photographic evidence of some of the tipping, and indeed the results of the land survey carried out in 2008 at the judge’s request, I fail to see how these incidents taking place where they were, could be considered anything other than major or significant.

Had the Agency investigated fully and appropriately what was happening on the farm and used the powers at their disposal, I am satisfied that that could and should have brought about a much earlier and successful conclusion. Most importantly, the Agency would then have acted while Mr R was the registered owner of all the land, including the burning pit. Indeed, if at the outset the Agency had acted with the clarity of purpose and conviction which they eventually did in 2007, I think it is quite clear that Mr R would have been held to account much sooner.

In summary, the Agency monitored Mr R’s illegal activities from July 2000 onwards and frequently warned him of the consequences if he continued to import controlled waste without the benefit of a WML or exemption. 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. It is my view that the delay in taking action was not only a significant failure to ‘Get it right’ or ‘Act fairly and proportionately’ (paragraph 20), but also a very real failure to consider Mrs D and her son’s position, and their right to the peaceful enjoyment of their home. Those were serious failings which constituted clear maladministration.

The Local Government Ombudsman’s findings in respect of the County Council

The County Council had significant powers to tackle Mr R’s unauthorised use and development of his land for waste operations. As we have already indicated (paragraph 121), it should have considered taking the lead in these matters.

Failures in record keeping

From the evidence provided by the former Planning Enforcement Officer (paragraphs 109 to 112) it is clear that a significant amount of important and relevant information about that officer’s visits to Mr R’s site, meetings with other agencies and photographs are missing from the County Council’s records. The Officer said that he visited the site on at least 20 occasions in the year following his first involvement (which would have been around November 2000), and carried out relevant observations.

The County Council has questioned the evidence upon which its former Planning Enforcement Officer has based his comments. The County Council says that his comments are based upon a recollection of events which allegedly occurred many years ago. The County Council expresses concerns that this is not a sufficiently sound basis upon which to criticise it.
I do not agree. The Planning Enforcement Officer recalls visiting the site a large number of times and on one occasion was obstructed by Mr R’s employees. His recollections are supported by other evidence provided by the Borough Council and the Agency. We cannot now 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 failure to have that key information available in the County Council’s records is maladministration.

Failure to act

There is no question that waste was being brought onto Mr R’s land. Some of that waste might arguably have been legitimately used for permitted development – such as hardcore for the hard standings, which Mr R claimed was for agricultural purposes. Using the land for waste that was simply being tipped and burnt should have been pursued by the County Council as the Waste and Minerals Planning Authority. As soon as it became aware of the problem the County Council had a clear duty, as set out in the relevant legislation and government guidance (paragraphs 38 and 39), to investigate, to issue warning letters, to try to negotiate a settlement, to serve enforcement notices, and to monitor until the activities stopped and for some time afterwards. Over a period of several years the County Council failed to do any of these things.

The reasons that the former County Council Planning Enforcement Officer gave to our investigator for not taking action seem to me to be based on a flawed understanding of the legal definition of waste and also to lack credibility; they are contrary to the County Council’s published policies (including the County Council’s Minerals and Waste Plan) and to the evidence of the Head of Planning (paragraph 113).

The extent and nature of Mr R’s activities warranted attention at a senior level within the County Council. The lack of records means that we cannot know why this did not happen, but it is reasonable to assume that there was inadequate supervision and management of the Planning Enforcement Officer’s functions. This 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. That was very serious maladministration.

It seems to me that, had the County Council given the matter proper consideration, 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. Its failure to do so contributed significantly to the considerable distress, frustration and inconvenience suffered by Mrs D and her son over a number of years. Further, the County Council’s failure to take effective action when Mr R’s waste tipping and burning activities were at their highest might well have emboldened Mr R by giving him the impression that he could carry out those activities with impunity.

Highways enforcement

There is a conflict between the County Council’s claim that it would not have known about the complaints that Mr R was obstructing the footpath and the former Rights of Way Officer’s statement that he specifically asked the County Council to take a look at what was happening on Mr R’s land. I note that the Rights of Way Officer said that the County Council had refused, saying that the matter was not sufficiently serious for it to get involved. Given the County Council’s failure in other areas to keep appropriate records, and the Rights of Way Officer’s actions in response to the rights of way issues, I am inclined to accept the Rights of Way Officer’s account. On the balance of probabilities I find that the County Council was aware that the footpath was being obstructed and failed to take action. The absence of any evidence that it reached a reasoned decision on the issue is maladministration.

The Local Government Ombudsman’s findings in respect of the Borough Council

Our investigation has clearly shown that throughout the early period the Borough Council was the most active in trying to use its powers to tackle Mr R’s activities. By November 2003 when the Development Control Committee was eventually asked to approve proceedings including seeking an injunction, much of the damage on the site had already been done. The Borough Council’s powers were limited and, as confirmed in Counsel’s advice of 23 February 2004, unlikely to succeed without the engagement of the County Council and the Agency. That does not, however, mean that the Borough Council was without fault.

Failure to record and store information

Our investigator found the Borough Council’s files and records to be 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.

From the outset it was clear to the Borough Council’s former Planning Manager that there was a serious waste importation problem on the site that needed addressing. He involved the waste enforcement bodies at an early stage, but there are no adequate records of his referrals and no minutes of the early meetings between the three bodies.

The failure to record and retain important information is maladministration.

Failure to effectively engage the County Council

The County Council is the planning authority with enforcement powers to prevent the unauthorised use and development of land for waste storage and disposal. The Borough Council’s Planning Manager was aware of this and sought to involve the County Council and the Agency, but those attempts were not sufficiently persistent and rigorous. The issues should have been escalated to more senior officers in those other bodies to consider. Given the evidence from the County Council’s officers in particular (paragraph 113), matters may then have turned out differently. The Borough Council cannot be held responsible for the County Council’s lack of response and all that flowed from that. However, the Borough Council cannot show that prior to October 2003 it applied consistent and appropriate pressure on the County Council. That is maladministration.

Failure to consider the alleged assault, abuse and obstruction of its officer

The Borough Council was aware that its Planning Manager made an allegation that one of Mr R’s employees assaulted him, refused to allow him to remove his car and threw his mobile phone into a reservoir. This happened while the officer was carrying out an investigation using statutory powers. The Agency successfully prosecuted Mr R for similar acts of obstruction.

The Borough Council acted with maladministration in failing to take and record a properly considered decision about how to respond to the assault, abuse and obstruction of one of its officers in the discharge of its functions.

Failure to take effective enforcement action

The County Council is the planning authority for use and development of land for storage and disposal of waste, and should have taken the lead in enforcement action. In the absence of any action or co-operation by the County Council, the Borough Council attempted to take planning enforcement action against Mr R on the less significant issues that came within its powers. However, in doing so it did not act effectively. Although the Borough Council did serve enforcement notices it did not properly consider serving stop notices.

No one can now know whether the sale of land upon which tipping and burning was occurring was genuine, or a sham to hinder legal action. The Borough Council’s failure to reach a considered decision on the extent to which it should investigate this matter was maladministration.

The Borough Council’s attempt to deal with Mr R’s activities was commendable, but its overall failure to act effectively is maladministration.

Failure to tackle environmental health matters

The Borough Council had other powers to take action against Mr R. The Environmental Health Officer witnessed on several occasions that the burning waste on Mr R’s land was causing a statutory nuisance and was likely to recur. The Environmental Protection Act requires an abatement notice to be served in such circumstances but this did not happen. The Environmental Health Officer decided that an abatement notice was not the most appropriate way to tackle Mr R’s activities (paragraph 100). Such a decision should not have been taken in isolation. It seems to me that had the Borough Council used all its powers in a properly co‑ordinated way, it might, at least, have discouraged Mr R from thinking that he could do much as he pleased without fear of any sanction.

Failure to take highways enforcement action

The Borough Council had delegated power from the County Council to carry out its ‘rights of way’ function with the power (but not a duty) to assert and protect the rights of the public to the use and enjoyment of a highway. The Rights of Way Officer in the Borough initially dealt promptly and appropriately with the many complaints that began to be made from August 2001 onwards and asked the Borough solicitor to start proceedings. Legal action apparently halted when Mr R indicated that he would co‑operate. When he did not co-operate, no further action was taken before the responsibility reverted to the County Council in 2004.

There is no record of any considered decision by the Borough Council about what action to take and no co-ordination of any of the possible enforcement actions. Mr R did not respond to the threats of enforcement that were made and any action merely fizzled out.

If there had been proper co-ordination and a considered decision, action on the rights of way issues might have continued after the Rights of Way Officer left in August 2002. The Borough Council’s failure to reach a properly considered decision on how to respond to the complaints and the obstructions of the footpaths is maladministration, as is the failure to keep proper records.

Injustice

Mrs D and her son have described the effect which these events have had on them (paragraph 116), which we fully accept. We have no doubt whatsoever that the failure of all the 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 it is clear that 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 Mrs D and her son were compelled to make to try to prod the authorities into tackling his unauthorised activities. It follows that, 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 earlier in this report on the part of all three public bodies has led to Mrs D and her son suffering extreme distress over a very lengthy period.

In addition to that, Mrs D and her son were made to feel 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. They put their home on the market in June 2006, but potential purchasers were put off by the activities on Mr R’s land, and by his aggressive behaviour. As a result, it is only very recently that they have found a potential buyer for their property.

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 financial loss arising from the maladministration. The District Valuer’s report shows a very clear and continuing impact on the value of Mrs D’s and her son’s property caused by the existence of the neighbouring redundant waste site. In the District Valuer’s view, this impact is gradually diminishing over time, but it is still significant. She assesses 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. For comparative purposes, the District Valuer’s view is that in June 2006 the difference in Mrs D and her son’s property value caused by the existence of the neighbouring landfill site was £210,000 at that time. So the detrimental impact on the property value of the illegal landfill site has been decreasing over time. Having considered this new evidence carefully, we have reached the view that the current loss in value must be the result of maladministration we have identified in this report, namely the delay in appropriate action being taken to halt the illegal activities. This is because, had appropriate action been taken much earlier, the impact on the neighbouring land should have been considerably less. Also, there would have been opportunities to ensure that those involved in the illegal activity rectified the damage arising from their activities. Therefore, the time required for the value to recover should also have been less (and the impact would have been negligible by now). We are satisfied, therefore, that the District Valuer’s report provides evidence of actual financial loss caused to Mrs D and her son. We consider that the Agency, the County Council and the Borough Council are responsible for the full loss in current value to Mrs D’s and her son’s property caused by the existence of the neighbouring illegal landfill site.

Recommendations

The key question remaining is how the three bodies concerned can best remedy the above injustice suffered by Mrs D and her son. We make the following recommendations:

(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 will be 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. We commissioned an independent valuation report by a District Valuer who put the current difference in value at £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 (as required by the national protocol – paragraph 27).

(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.

In response to sight of the provisional report, the Borough Council and the Agency accepted the findings and recommendations contained in this report and agreed to comply with them. The County Council did not accept the provisional report in full. Their more detailed responses are set out in Annex C.

Conclusion

We have found there was both shared and individual maladministration by the three authorities. They failed to work effectively together and failed to identify appropriately which body should take the lead, based on who had the most relevant powers to intervene in the illegal activities. The Agency’s individual failings included the failure to properly investigate or take effective action against Mr R’s activities. The County Council had failures in record keeping and failed to take effective action. The Borough Council also had failures in record keeping and failed to take effective action. As a consequence of these failures by the three authorities Mrs D and her son suffered extreme distress and experienced financial loss. This was considerable injustice for Mrs D and her son arising from maladministration. Therefore, we uphold the complaint.

Ann Abraham
Parliamentary and Health Service Ombudsman

Anne Seex
Local Government Ombudsman

January 2010

Back to top