Summary: Mr X complained the Council was wrong to allow moorings on the river near him, resulting in damage to the river bank, noise and anti-social behaviour. We find no fault by the Council on its decision making. The Council previously accepted fault and provided a suitable remedy for a complaint of lost records. We are satisfied with this action and make no further recommendation.

The complaint

1. Mr X complains about the Council’s decision to allow moorings on the river near him. He says it decided without following a proper process. Further, boats have damaged the river bank and himself and others are impacted by noise and anti-social behaviour of those mooring.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
6. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
9. I gave Mr X and the Council a chance to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning permission

10. Moorings may need planning permission if they constitute a development. For instance, a permanent residential mooring would likely amount to a development that needs planning permission. In this case the Council found moorings were already established. It found there was no development or change of use that needed planning permission.
11. A person may apply for a Certificate of Lawfulness from a council that works do not require planning permission. However, it is not necessary for anyone to apply for this.

Housing

12. Councils have various housing duties regarding “travellers”. The Council considers the boaters referred to in this complaint are not “travellers”.

Licensing

13. Boaters can travel up and down the waterways and stay anywhere for up to 14 days. If they overstay the Canal and River Trust (CRT) may take action. I note the CRT is not within the Ombudsman’s jurisdiction.

Flood risk register

14. Under the Highways Act 1980 councils have a duty to place any structure that they consider to have a significant impact on flood risk on a register. In this case the Council considers the river bank is not a such an asset or structure.

Duties as river owner

15. As a river owner the Council must:
• maintain the watercourse and to clear any obstructions.
• maintain the banks and bed of the watercourse and any flood defences that exist on it.
• maintain any structures on your stretch of watercourse including culverts, weirs and mill gates.
• keep the bed and banks clear from any matter that could cause an obstruction and clearing any debris.

Environmental health

16. Councils must investigate complaints of statutory nuisance, including noise or build up of waste prejudicial to health.
17. If a council decides there is a statutory nuisance then it should serve an Abatement Notice. If the problem continues the council may gather further evidence to demonstrate a breach of the Notice. If the evidence shows the Notice is still not complied with, then the council may take the matter to court. However, a council does not have to take court action.

Anti-Social Behaviour (ASB)

18. The following bodies all have some responsibility for investigating and preventing ASB:
• the relevant local council;
• the local police;
• the local clinical commissioning group (where, for example, a person is suspected of causing ASB because of mental health problems); and/or
• social housing providers.
19. We often see councils telling complainants to report matters to other bodies – particularly the police. But, even if a particular report is better suited (in the immediate sense) to a police response, we would expect a council to maintain accurate records of the reports, and, where necessary, follow up with the complainant(s) and other relevant bodies, while considering what it may do under its own powers. Joint-working and information-sharing between authorities is a critical feature of an effective response to ASB.

What happened

20. In 2014/15 the Council became aware of issues around moorings on a stretch of river. There were no rules in place upon which it could exercise control or take enforcement action. It therefore considered formalising the mooring arrangements to address this.
21. The Council has outlined the consultations and surveys carried out ahead of a mooring trial. This included advice from its planning department that moorings were already established and there was no change of use.
22. In 2016 the Council introduced a trial for 14 day moorings along the river near to Mr Xs’ home.
23. Mr X says he did not complain initially as this was only a trial.
24. The Council says it carried out an initial review of the trial after one year. The moorings then remained in place until a more substantial review in 2019.
25. In April 2019 Mr X complained the Council failed to:
• assess the suitability of the site for travellers under the Housing Act 2016;
• carry out an environmental or health and safety assessment;
• carry out monitoring or enforcement or to record data arising from the trial;
• make any budgeting provision or allocate any designated officer before or during the trial;
• assess the suitability and long term impact on residents and the environment;
• provide robust and verifiable information on the mooring trial and parking issues;
• respond to numerous recorded complaints of damage to street furniture and the environment or to engage in site visits or communication of any type with any offending boat owners during the trial; and
• provided misleading and incomplete Freedom of Information requests.
26. In July 2019 Mr X asked the Council to deal with his complaint under the independent review, expected to report later that year.
27. An independent consultant carried out a review. They issued a report in September 2019 and published this in November 2019.
28. In January 2020 the Council decided to assess the condition of the river bank before deciding on the future of the moorings. The moorings remained closed until a structural survey was completed and results presented to Cabinet on 8 October 2020.
29. On 25 July 2020 Mr X complained to the Council, raising his April 2019 complaint as unresolved. He added the Council:
• did not consult with the planning department
• did not follow the recommendations of a river traveller paper
• lost 2005 records of structural works to the river bank
• failed to register works on the flood register
• failed to keep records of works
• obstructed processes
• published inaccurate information and policies not fit for purpose
30. Further, he complained the influx of travellers and their activities was of detriment to residents.
31. On 3 August the Council asked for further details on some of the points raised. Mr X said there had been many complaints about the behaviour of travellers with no response. He did not give further details but referred the Council to his earlier correspondence.
32. The Council responded on 18 August. In summary it said:
• boaters did not fall under the definition of travellers as referred in the Housing Act 2016 and so there was no duty to carry out an environmental assessment;
• following concerns raised by residents about the river bank it commissioned a survey of the structure;
• it had reviewed the trial and now enclosed its report;
• its January 2020 cabinet report referred to monitoring undertaken, that only minor infringements were found and no formal action taken;
• it is exploring creating a new post with responsibility for the moorings and safety;
• it had allocated an officer to work on the trial and subsequent work;
• assessments took place and it consulted with residents in autumn 2020;
• in 2016 it considered whether to implement a traffic regulation order and it has implemented some recently;
• it needed further details regarding the FOI request;
• the Environment and Design Team led the trial and engaged with planning colleagues in the process;
• recommendations from relevant reports helped inform their work;
• due to turnover of staff and time past it lost its record of a 2005 survey. It apologised for this. Residents had since provided a copy though this could not be relied on due to age. It would carry out another survey in due course.
• the riverbank was not an asset that it had to place on the flood risk register.
• it needed further details about inaccurate information, poor policies and the activities of travellers in order to respond.
33. On 28 September Mr X responded that:
• the loss of records was unacceptable and he asked for action to prevent recurrence.
• it did have to record the river bank on the flood risk register
34. The Council’s commissioned survey of the river bank took place in September 2020. The survey reported no immediate concerns or signs that mooring was adversely affecting the stability of the bank.
35. In October 2020 the Council considered the information to date and decided to reduce the number of moorings in the short term, and increase enforcement and engagement capacity.
36. The Council responded to Mr X on 23 October. In summary the Council:
• addressed his FOI concerns;
• explained it had a record management policy and officers recently received updated training. It was satisfied with improvements since 2005;
• gave details of site visits;
• said it could not comment on matters relating to individual officers
• said it properly addressed health and safety matters;
• said it did not hold names and details of boaters;
• confirmed it had followed up any complaints received from residents
• acknowledged he did not agree with its decision regarding the flood risk register.
37. On 18 November Mr X asked to go to stage 2.
38. The Council gave its stage 2 response in February 2021. In summary it said:
• FOI matters were for the ICO
• It had already apologised for losing a 2005 survey but this could not be relied on due to its age and it had since commissioned an up to date survey.
• It did not consider the river bank was an asset that it would place on the flood risk register
• It acknowledged he was unhappy with the moorings but the Council considered views including his in open public meetings and took this into account in its decision making.
39. In April 2021 Mr X complained to the Ombudsman. In summary he complained the Council:
• lost engineering records
• did not place the scheme on the flood register
• did not have records of boats and boaters
• lost a petition
• asked residents to communicate with a person that he considers inappropriate
40. In response to enquiries about Mr X’s complaints of noise or ASB over the last 12 months, April 2020 to April 2021, the Council said:
• It told residents to report Council related issues such as dog fouling, highway conditions, noise nuisance, litter, fly tipping, cleansing etc, online or by phone and
• Police matters such as vehicle obstruction, anti-social-behaviour, criminality, threatening behaviour to 101 (non-emergency police line) or the police website.
41. It held regular partnership meetings with the police and other relevant parties from June to September 2020. It discontinued these meetings as there was no evidence on any noise or ASB that was actionable. The number of referrals to the police were limited and mostly comprised of alleged harassment by residents of boaters. During one of these meetings it undertook an informal review of the Community Trigger arrangements to ensure that no further action should be taken by partners.
42. It provided a record of Mr X’s complaints from April 2020 - April 2021. I note these do not include any complaints of noise or ASB but include parking and traffic issues.
43. The Council said it also received complaints for parish councillors on behalf of residents. It provided records showing it addressed these. I have not included details for confidentiality reasons.
44. In comments on a draft of this decision the Council highlighted a factual inaccuracy, which I have since corrected. This does not affect the decision findings.
45. In comments on a draft of this decision Mr X provided further information and evidence. In summary Mr X said:
• He was previously unaware the Council had decided the moorings were established use and questions its decision making.
• He enclosed further information and evidence to show the boaters were indeed “travellers”.
• He queried how the Council would provide records if it did not put the river bank on the flood risk register.
• The Council failed in its duty to maintain the river bank and bed.
• The Council should provide comprehensive records of all complaints and reports of pollution, anti-social behaviour and property damage evaluated.
• He queried why I did not investigate noise and ASB complaints arising more than 12 months prior, given there was limited activity during the COVID-19 lockdown. His complaints from the start of the mooring trial were more relevant.
• The Council still had no rules in place to exercise enforcement.
• He had concerns about the Council’s responses to his Freedom of Information (FOI) requests.
• Residents engaged their own engineer to survey the river in 2021. This engineer did not agree with the findings of the Council’s report and said the Council had not addressed three key questions:
1. whether 2005 stabilisation works were intended to accommodate multiple moorings;
2. whether there was any damage since those works;
3. whether any damage could occur in future.
• He wanted further details of the site visits referenced in the Council’s complaint response of 23 October 2021.
• He referred to action taken by the Council on another stretch of river, including keeping records of boaters, and queries why it did not take the same action in this case.
• He was unhappy I appeared to overlook his complaint of a lost petition. (However, this was a matter I did not investigate as explained at the end of this decision).
• In reference to the Council’s partnership meetings with the police he noted the police said it was difficult to pursue complaints against persons with no fixed abode. Further that no planning officers were present.
• He referred to cases where the Council followed and published its planning process for deciding on “established use” and sought evidence of the Council’s decision making in this case.
• The Council was wrong to dismiss the value of the 2005 records based on their age. He considered the original records essential and the Council’s disregard would result in costly repair works.
• The loss of the 2005 records caused residents stress. They have suffered the introduction of moorings as a result and the cost of commissioning their own engineering report to expose the Council’s own flawed survey.

Findings

46. Mr X’s complaint about the Council’s 2016 decision on moorings arose more than 12 months ago. However, I acknowledge Mr X understood the moorings were only temporary at that time and says he did not have cause to complain until April 2019. He then paused this complaint as he thought an independent review would resolve matters. In June 2020 Mr X complained again. He completed the complaints process in February 2021 and then contacted the Ombudsman. Taking this timeline into account I consider Mr X has good reasons for not contacting us sooner. I will therefore exercise discretion to investigate. However, it is not appropriate or proportionate to review every aspect of the Council’s decision making from 2016. Rather I will investigate those matters raised by Mr X during the complaints process.
47. The Council considered whether planning law applied to the moorings and found it did not. I cannot find fault with this decision. It is up to the Council what constitutes development or a change of use. Any dispute as to the interpretation of the law in this regard would be for the courts to decide. I note Mr X now questions the decision making process the Council followed however, I will not investigate this further. This is because even if there was fault in the process the Council could have reached the same decision outcome and it would remain for the courts to decide on its interpretation of the law.
48. The Council found the boaters were not “travellers” for the purposes of the Housing Act. The Council was entitled to reach such a judgement. Any dispute as to the interpretation of the law would be for the courts. While Mr X continues to dispute the Council’s judgement, this remains for the courts.
49. The Council does not consider the river bank constitutes a structure or asset that must be entered on the flood risk register. Again, the Council was entitled to reach this decision and so I cannot find fault. I acknowledge Mr X disagrees but again any dispute about the interpretation of the law would be for the courts.
50. The Council’s loss of records in 2015 is fault. However, the Council has explained it could no longer rely on these records due to the time passed. Further, I note a third party was able to provide the Council with a further copy. Therefore, any injustice is minimal. I am satisfied the Council’s apology to Mr X provided a suitable remedy. I recognise Mr X considers the records held much more importance however it is up to the Council how much weight it attaches to any information.
51. I am not aware of any duty on the Council to keep a record of boats and/or boaters. I am therefore unable to find fault. I note Mr X has provided evidence of the Council’s action along another stretch of river. However, I will not investigate this further as the information provided does not establish any duty. Further and in any event it is unlikely the circumstances are the same as in this case.
52. The Council instructed an engineer to carry out a survey of the river and found no damage of concern. I acknowledge Mr X considers the survey inadequate but there is no specific law, duty or policy that I can say the Council has failed to follow. I am therefore unable to find fault. I note Mr X and others have since presented the Council with their own report and sought discussion on this. However, I cannot comment on ongoing matters. If Mr X is unhappy with the Council’s actions going forward he may raise a new complaint to the Council.
53. Mr X said he had many complaints of noise and ASB that the Council did not address. There is no reason why Mr X could not have contacted us in good time on any matters. Therefore, I will limit to my investigation to complaints raised in the 12 months before Mr X contacted us; that is April 2020 to April 2021. As explained at paragraph 4, we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Mr X could have complained to us about earlier concerns of noise or ASB at the relevant times if he wished.
54. On review of the Council’s records for this period it appears Mr X did not directly complain of noise or ASB. Any matters raised by third parties in this period were addressed. Therefore, I find no fault by the Council.

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Final decision

55. I have completed my investigation. I have found no fault excepting the loss of records which the Council has already remedied.

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Parts of the complaint that I did not investigate

56. I did not investigate matters not yet addressed through the Council’s complaints process, as the Council has not yet had chance to respond. This includes Mr X’s complaints about a lost petition and contact with an unsuitable representative. It also includes queries raised in Mr X’s comments that I did not need to consider as part of my investigation and that he can put to the Council if he wishes.
57. I did not investigate any complaints regarding the Council’s responses to FOI requests. This is because the Information Commissioner’s Office is the appropriate body to consider any such disputes.

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Investigator's decision on behalf of the Ombudsman