Summary: The Council failed to properly consider whether to take action to deal with fly-tipping on private and unregistered land. It also delayed responding to Mr B’s emails and telephone calls. The Council has agreed to properly consider whether to take action to deal with the fly-tipping and review the way it deals with contact from residents.

The complaint

1. Mr B complains that the Council has failed to properly deal with fly-tipping, litter and anti-social behaviour in his area. He says that the Council has also failed to properly deal with his telephone calls and complaints about the matter.

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What I have investigated

2. I have investigated Mr B’s complaints about the Council. The last section of this statement explains why I have not investigated the actions or decisions of the Shropshire Community Safety Partnership.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation

7. The Environmental Protection Act 1990 places a duty on councils to ensure that ‘relevant land’ is, so far as is practicable, kept clear of litter and refuse. (Environmental Protection Act 1990, section 89(1))
8. ‘Relevant land’ is land that is open to the air, but not a highway, which is under direct control of a principal litter authority and to which the public are entitled or permitted to have access, with or without payment. (Environmental Protection Act 1990, section 86(4))
9. Land owned by a company when it is dissolved automatically passes to the Crown. (Companies Act 2006)
10. Crown authorities must ensure that ‘relevant Crown land’ is, so far as is practicable, kept clear of litter and refuse. (Environmental Protection Act 1990, section 89(1))
11. Land is ‘relevant Crown land’ if it is Crown land which is open to the air and is land (but not a highway or in Scotland a public road) to which the public are entitled or permitted to have access with or without payment. The ‘appropriate Crown authority’ for any Crown land is the Crown Estate Commissioners, the Minister in charge of the government department or the body which occupies or manages the land on the Crown’s behalf, as the case may be. (Environmental Protection Act 1990, section 86(5))
12. Local councils have the discretion to choose whether to investigate fly-tipping on private land but have no obligation to clear fly-tipped waste. In certain circumstances, councils can serve and enforce a notice requiring the owner or occupier of land to remove material that has been fly-tipped. The Council may remove fly-tipped material itself and can seek to recover the necessary costs of doing so. (Environmental Protection Act 1990, section 59 and Public Health Act 1961, section 34)
13. Councils have a duty to take action to deal with anti-social behaviour and will work with partners, such as the police, to tackle it. (Crime and Disorder Act 1998, section 17).
14. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of Community Safety Partnerships. (Local Government Act 1974, sections 25 and 34A, as amended)

Key events and analysis

15. Mr B contacted the Council and asked it to close some gaps in a hedge so that drivers and pedestrians could not use them as shortcuts.
16. In April 2018, the Council installed two fences behind the gaps. It said that it would also carry out some planting when the ground conditions were suitable.
17. The larger fence has successfully prevented drivers using one of the gaps as a shortcut. However, the smaller fence which was installed to prevent pedestrians using the other gap was vandalised shortly after it was installed.
18. The Council carried out some planting in February 2019 but someone pulled out and discarded the saplings a few days later. The Council replanted the saplings but the following day they were uprooted and discarded again.
19. The Council clearly considered Mr B’s concerns and it took action to address them. The Council has not replaced the smaller fence and planting after they were vandalised due to the costs involved. Councils must use public money carefully. I do not consider there are grounds to criticise the Council’s decision to not replace the fence and planting at this time. However, I would expect the Council to revisit this decision when funding becomes available.
20. Mr B has also raised several concerns about fly-tipping in his area. The Council collects waste which has been fly-tipped in public areas, but it does not collect waste which has been fly-tipped on some of the roads and grassed areas around the housing estate, or in a residents’ parking area. It says that it is not responsible for keeping those areas clear of litter and refuse.
21. Mr B says that the owners of the houses were not allocated individual parking spaces and so they are not their responsibility. He says that the company which developed the estate has been dissolved and so land previously owned by the company has been passed to the crown. He considers the Council should look after it.
22. The Council has sent Mr B an ownership plan for the estate to show that most of the grassed areas and shrub beds are not the Council’s responsibility. It says that some are privately owned and some belong to a Housing Association. The Council says the access road to the car park is not registered, it has not been adopted and it believes that it remains in the ownership of the original developer of the estate.
23. The Shropshire Community Safety Partnership arranged a ‘day of action’ to improve the area. This took place in October 2018 and included the removal of around three tonnes of fly-tipped waste, some of which was collected from the parking areas on the estate.
24. As detailed in the ‘relevant legislation’ section above, the Council does not have a duty to clear fly-tipped waste from crown land or land which is privately owned. However, it can, in certain circumstances, serve and enforce a notice requiring the owner or occupier of land to remove material that has been fly-tipped, and it can remove fly-tipped material itself. I have seen nothing to suggest the Council has considered taking any action since the ‘day of action’ in October 2018. Given the amount of waste collected at that time, there is clearly a significant problem in the area. As it has not been resolved, and the Council has the power to deal with it, I would expect the Council to keep the matter under regular review. I am not satisfied that the Council has properly considered whether to take any further action to address the ongoing problem with fly-tipping. This is fault.
25. Mr B considers the Council should do more to prevent fly-tipping in the area. Some years ago, the Council posted warning signs and sent out advisory letters to local residents aimed at deterring people from fly-tipping. More recently, it considered installing CCTV in one area, but it decided that there was no suitable installation point that would adequately capture images of activity. While councils may take action to prevent fly-tipping in their areas, there is no duty to do so. I have found no evidence of fault here.
26. The Council has sometimes delayed responding to Mr B’s telephone calls and emails. This is fault and has caused Mr B frustration. The Council accepts that it needs to respond to Mr B’s service requests in a more timely manner and it has apologised to Mr B for the delays.

Agreed action

27. Within six weeks, the Council will:
• Properly consider whether there is any further action it could take to address the fly-tipping problem in the area. It will then write to Mr B with details of the options it has considered, any action it intends to take and its reasons for not taking any action which is within its power.
• Take action to ensure the fly-tipping problem in the area is reviewed periodically.
• Review the way it deals with residents’ telephone calls and emails to ensure it responds to them in a timely manner.

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Final decision

28. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice to Mr B. The action the Council has agreed to take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

29. The Shropshire Community Safety Partnership includes officers from the police, the fire service, housing associations and other agencies. The Council says that the issues of antisocial behaviour, violence and drug dealing and taking are well known to the partnership, who meet regularly and work together to deal with anti-social behaviour in the area. The Ombudsman cannot investigate a complaint about the actions or decisions of the Shropshire Community Safety Partnership because of the involvement of bodies which are outside of the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman