Summary: Mr B complained that the Council agreed to remove fly-tipped items from its land behind his house in August 2020 but has failed to do so. We find no fault on the Council’s part. It has monitored the site regularly and explained why it has not been practicable to remove the items until recently.

The complaint

1. Mr B complains that the Council agreed to remove fly-tipped items from its land behind his house in August 2020 but has failed to do so.

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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. 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

4. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

6. Section 89 (1) Environmental Protection Act 1990 places a duty on councils to keep ‘relevant land’ clear of refuse and litter ‘so far as is practicable’.
7. ‘Relevant land’ is land that is open to the air on at least one side, under the Council’s direct control and publicly accessible.

Key facts

8. On 11 November 2019 Mr B reported fly-tipped wood on Council owned land behind his house. The wood had been placed there by residents to have a bonfire but they decided not to go ahead with the fire and left the wood.
9. A team visited the site but could not locate the wood. They closed the job.
10. On 27 November 2019 Mr B contacted the Council again providing further location details.
11. The team attended again in December 2019 but could not gain access to the land because the only entrance to it is along a narrow grass track with fencing on either side. The job was closed again because a smaller vehicle was required to gain access and the ground was too wet for operatives to drive a vehicle onto the land. This would damage the grass and potentially cause the vehicle to get stuck.
12. On 20 December 2019 Mr B contacted the Council disputing the access issues. The job remained closed due to no access. Notes were added to the job which stated “During the winter we would not be able to access the green area with a vehicle. Previously throughout the borough we have had instances where the vehicle has got stuck due to the wet ground surface. All operatives have been instructed not to drive on grass during the winter period.… we would need to wait for drier weather and source a transit tipper as our fly tipping vehicle is a 7.5 ton caged tipper and would not be able to access”.
13. The team visited again on 2 January 2020 but found the ground waterlogged. They visited again on 21 March and 3 May 2020 but still could not gain access.
14. On 7 June 2020 Mr B contacted the Council again. On 10 June 2020 the job was closed as no access. Mr B contacted the Council again on 16 June 2020.
15. On 16 July 2020 Mr B complained at stage 1 of the Council’s complaints procedure. The Council responded on 12 August explaining operatives had attended the site but the vehicle required to remove the fly-tipped items was too large for the only entrance via the passageway. It said operatives would return to remove the items. This would be achieved by driving the vehicle over the grassed area but, to ensure there was no damage to the grass, the crew would require several days’ dry weather.
16. Mr B asked for his complaint to be escalated to stage 2 on 14 September 2020. The Council responded on 6 October 2020. It apologised for the inconvenience and said a team would return to the site in the week commencing 12 October, but they would require several days of dry weather to access the area.
17. On 7 December 2020 the street cleansing supervisor advised the team had still not managed to gain access to the field because of the wet weather. He was hopeful that, if the temperature continued to drop, the surface would be hard enough to support vehicle driving over it.
18. The team visited the site again on 19 February 2021 and found the ground was still too soft. A further site visit was completed on 25 March 2021. The supervisor took measurements to assess whether a tractor could access the entrance to the site. It was agreed that, as the weather had been favourable recently, the team would procure a tractor and remove the items. This would damage the land but the tractor would be at less risk of getting stuck than the usual vehicles. The Council has now removed the items.

Analysis

19. The Council’s policy on fly tipping states that it will remove fly-tipped waste as part of its routine operational activities. The procedure will be determined by the quantity and nature of the waste. Each report will be responded to by either a local mobile team or the mobile crew equipped with a 7.5 ton caged vehicle. For low volume quantities of waste which can easily be manually handled (equivalent to the size of one small vanload or less) one of the mobile teams in a 3.5 ton caged vehicle will generally be asked to respond. For larger fly tips, the Council will use a dedicated mobile team equipped with a 7.5 ton caged vehicle.
20. The Council says that, on attending the site, the fly-tipping team will assess it for risks such as hazardous waste and the bulk and weight of the load. They must also assess access to the site, including the risk of the vehicle becoming bogged down or wheel spinning on entering and exiting the site, potentially bearing off course and hitting the fence. It says the risks would increase with a fully laden vehicle.
21. I am satisfied the Council has been monitoring the situation and the team has visited on a regular basis. On each visit to the site, they decided the risk of accessing the land by vehicle was too high. But they could not manually carry the wood to the vehicle because they could not move the vehicle close enough without driving on the grass.
22. Although the law imposes a duty on councils to remove dumped rubbish from public land, they only have to do what is practicable to achieve this. The Council has explained why it has not been practicable to remove the wood until recently. In the absence of administrative fault, there are no grounds to question its decision.

Final decision

23. I do not uphold Mr B’s complaint.
24. I have completed my investigation on the basis I satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman