A Landlord complained that, between 2014 and 2019, Flintshire County Council failed to take timely and appropriate action to deal with a car wash which was causing Statutory Nuisances of noise and water/chemical spray affecting the Landlord’s tenant, Mr R and which was also in breach of planning control. The Landlord also complained that the Council failed to investigate and respond to its complaint appropriately and in line with its Corporate Complaints Policy.
The Ombudsman found that despite identifying in 2014 that the car wash was causing a Statutory Nuisance, the Council did not open an appropriate case file until 18 months later and did not serve an Abatement Notice for a further 13 months. When the car wash continued to operate and cause the Statutory Nuisance, contravening the Abatement Notice, the Council took no further action. Consequently, Mr R had to endure significant persistent, disruptive and intrusive noise levels and water spray for a number of years. This was a significant injustice to the tenant and also to the Landlord, in view of the Landlord’s obligations to its tenant and his right, under Article 8 of the Human Rights Act 1998, to the quiet and peaceful enjoyment of his home.
The Ombudsman found that the Council was aware from at least 2012 that the car wash did not have appropriate planning consent but it had almost no planning records from before August 2018. There were also failures in inter-departmental communication and co-operation. The lack of records coupled with the Council’s inaction over the 5 years preceding August 2018 suggested that it did not fully consider whether to take enforcement action against the car wash and amounted to maladministration. Consequently, the Council could not explain the reasons behind its actions (and inaction) and moreover, it was impossible for the complaint to be dealt with fully and the history of the case in the Planning Department to be examined and evaluated.
The Ombudsman also found that the Council failed to respond to the Landlord’s complaints appropriately and escalate them when it asked for assistance to raise a formal complaint. There was also an absence of clearly established ownership at senior levels in the Council, compounded by the length of time that the failures continued and a lack of regard for the difficulties being faced by Mr R. Consequently, there was no appropriate investigation of the complaint and the Landlord received no meaningful response to its concerns.
The Council agreed that, within one month of the Ombudsman’s report, it would:
a) Remind relevant staff at all levels within the Council of the importance of dealing with correspondence appropriately, including signposting individuals who want to raise a formal complaint to the Corporate Complaints Team
b) Offer a meaningful apology, in writing, to the Landlord along with £1000 financial redress in recognition of the failings in complaints handling, and the Landlord’s time and trouble pursuing the complaint for at least 5 years
c) Offer a meaningful apology, in writing, to Mr R, along with £2,500 financial redress for the failure to deal with the Statutory Nuisances and in recognition of the persistent and prolonged exposure of Mr R to unacceptable levels of noise and water spray for at least 5 years.
In January 2019 the Council reviewed and updated its policy on Planning Enforcement. The Council also agreed that, within 3 months of the Ombudsman’s report, it would:
a) Share this report and its findings with relevant staff in the Planning, Environment and Legal Departments as well as with the Leader of the Council, the Cabinet Member for Planning and Public Protection, the Planning and Development Control Committee and the Environment Overview and Scrutiny Committee
b) Establish what powers remain available to it to resolve the issues and ensure that it fully exercises those powers as appropriate to achieve an ultimate resolution
c) Review its Public Protection Service Enforcement Policy, to ensure that it remains relevant, effective and compliant with Welsh Government guidelines, legislation and best practice, with particular reference to Statutory Nuisances
d) Develop formal procedural arrangements for co-operation between departments to improve the efficacy and efficiency of inter‑departmental collaboration, with an emphasis on Planning, Legal and Environmental Health
e) Review the Complaints Policy to ensure it is clear who should have overall responsibility for investigating and responding to complaints, particularly where the matters concern different departments in the Council
f) Reflect on how the consideration of human rights can be embedded into its practice when deciding whether to take enforcement action, with particular reference to planning control and investigations into Statutory Nuisances
g) Review its internal communication and escalation channels to ensure that staff can raise concerns during their day-to-day work which can then be managed constructively, to encourage ownership and accountability whilst discouraging a “blame culture”.