Summary: Mr C complained about how the Council dealt with his reports of fly-tipping, waste storage transport, and anti-social behaviour on an accessway at the back of his property. We found the Council properly considered Mr C’s concerns and there was no fault in the process it followed to reach its views. It therefore reached decisions it was entitled to make. There was also no fault in how it communicated with Mr C and updated him on its findings.

The complaint

1. The complainant, Mr C, says the Council failed to take enough action, or refused to take action, following his reports of fly-tipping, waste storage, and waste transport in an accessway at the rear of his property.
2. He also said he has experienced anti-social behaviour and threats of violence from neighbours, and the Council had wrongly told his neighbours he had brought his concerns to the Council’s attention.
3. Mr C said, as a result, he has experienced distress, uncertainty and had damage to his property.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. If we are satisfied with an organisation’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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What I have and have not investigated

8. I have investigated Mr C’s complaint about the Council’s handling of his waste and antisocial behaviour concerns since May 2023, which is 12 months before he brought his concerns to our attention, until May 2024 when the Council provided its final complaint response.
9. I have not investigated Mr C’s complaint about the Council’s handling of his concerns about waste or antisocial behaviour before May 2023. This is because:
• we have previously investigated his complaint about these matters and issued our decision in early 2022; and
• he did not bring his concerns to our attention within 12 months of the matters complained about, and I have seen no good reasons to exercise my discretion to consider earlier points of his complaint.
10. I have also not investigated Mr C’s concerns about the Council sharing information with his neighbours about his reported concerns. This is because the Information Commissioner (ICO) is best placed to consider such matters.

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How I considered this complaint

11. I have considered Mr C’s complaint and the Council’s responses, including the subsequent information he and the Council provided to the Ombudsman. I also offered Mr C a call to discuss his complaint.
12. Mr C 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

Relevant law and guidance

The Environmental Protection Act 1990

13. The Act says no person shall:
• deposit controlled waste, or knowingly cause or permit controlled waste to be deposited on any land unless an environmental permit authorising the deposit is in force, and the deposit is in accordance with the licence.
• Treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.
14. This relates to any land and no distinction is made between public and private land, it includes land within the property boundary of a domestic property.
15. A person who does so may be committing an offence, and the case can be brought to a magistrates court for its determination. This may result in imprisonment.
16. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to tell complainants about their right to take private action.

The anti-Social Behaviour Crime and Policing Act 2014

17. This Act sets out councils have a general duty to tackle anti-social behaviour (ASB). But ASB can take many different forms; and when someone reports a problem, councils should decide which of their powers is most suitable.
18. For example, they may approach a complaint:
• as an environmental health issue, where the complaint is about noise or pollution;
• as a planning matter, where the complaint is about an inappropriate use of a building or facility;
• as a licensing matter, where the complaint is about a licensed premises, such as a pub or nightclub; and
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.
19. The Act introduced six powers for agencies involved in tackling ASB. These are:
• the power to issue a community protection notice (CPN);
• the power to make a public spaces protection order (PSPO);
• the power to close premises for a set length of time;
• a civil injunction (a court order, which a council, or other agencies, can apply for);
• a criminal behaviour order (a court order made following a conviction); and
• the power for the police to disperse people from a specified area.

Community Protection notices

20. Councils and the police can issue community protection notices (CPN) to prevent anti-social behaviour which is unreasonable and having a negative effect on the community's quality of life. A CPN requires the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to stop it happening again. Not complying is an offence and may result in a fine or a fixed penalty notice.
21. Councils must issue a written warning in advance of a CPN. The council should decide how long after the written warning to wait before serving a CPN. A person can appeal a CPN in the magistrates' court within 21 days of receiving it if they disagree with the council’s decision.
22. In some instances, antisocial behaviour may cause a statutory nuisance under the Environmental Protection Act. In such cases councils can serve both a CPN and an abatement notice on the perpetrator if they consider it necessary.

Council’s enforcement and waste disposal policy

23. The Council’s Enforcement Policy and its Waste Disposal and Street Scene Services: Policy Statements sets out how it will consider and investigate reports of issues including fly-tipping and waste disposal.
24. It will consider the powers available to it which range from advice, warnings, fixed penalty charge notices, and investigation of formal cautions which may be prosecuted.
25. Fly-tipping is a priority to the Council and can be reported through its website, which explains the action it and the Environment Agency may take. This includes removing fly-tipped waste from Council controlled land and it will work with local communities regarding tackling fly-tipping and other street scene issues within individual neighbourhoods.

Background

26. Mr C’s property fronts a road. Access to his and his neighbours’ garages are through an accessway which is at the back of the properties. The access road is unadopted and has a gate which requires a key. Mr C and his neighbours have keys for the gate to use the access road.
27. Mr C has for several years been reporting concerns about fly tipping, waste storage, and waste transport by some of his neighbours along the access road at the back of their properties.
28. The Council has previously considered Mr C’s concerns and decided it could not take action against his concerns. This was because the accessway was private, waste was contained in skips, and it was not satisfied there was fly tipping. However, it has previously discussed concerns with his neighbours and several years ago it removed a large amount of waste from the area.
29. In 2021 it issued a community protection notice against one of Mr C’s neighbours citing anti-social behaviour legislation.
30. In 2021 we investigated Mr C’s concerns about the Council’s handling of Mr C’s concerns. We did not reach a finding the Council had a duty to consider enforcement under environmental health legislation, but we found the Council had caused delays in considering and reaching its views on antisocial behaviour concerns.

What happened

31. In 2023 Mr C continued to report concerns to the Council. He said:
• a neighbour was transporting waste in large vehicles and storing waste along the accessway. He said he believes this is part of a business and had caused damage to Mr C’s fence and posts;
• the Council was responsible for overseeing that relevant laws were adhered to within the area regarding the controlled waste, which included waste stored in and around skips on the side of the accessway. He explained the land was not private and there was no formal key management for the gate to use the access road; and
• land owned by the Council on the side of the accessway was overgrown which restricted access further.
32. The Council visited the site to consider Mr C’s concerns. It told him it had not found evidence of damage to his property. It explained it was not responsible for controlling the accessway as this was an unadopted private road and the property deeds made the landowners responsible. It would therefore not impose licences on skip use or vehicle restrictions. It found the waste present was stored in skips and there was no evidence of fly-tipping. It also explained the overgrown area was leased out and the business was responsible for maintaining this.
33. In autumn Mr C again reported his concerns about waste and skip use in the accessway. This also included waste stored at the back of a neighbouring property which was likely to contain asbestos. He was unhappy with the Council’s lack of action against his neighbours but did not want to submit a complaint.
34. The Council acknowledge Mr C’s concerns and explained its enforcement team would consider his fly tipping concerns.
35. A month later, Mr C asked the Council for an update and information around how it had considered his concerns, including its internal communication and how it had consulted other bodies.
36. The Council explained its view about its role regarding the accessway again to Mr C, and it had inspected the site again and surveyed the waste. It noted waste from property works was within a neighbouring property boundary, but this was no longer the case and asbestos may be present. It would therefore revisit this, discuss this with his neighbour, and consider if any action was necessary. It explained if Mr C was willing to make a statement waste had been fly tipped, it could consider his concerns further, including whether prosecution was appropriate.
37. Over the following weeks the Council discussed the waste concerns with Mr C’s neighbours. It also arranged for some waste to be investigated for asbestos. It confirmed asbestos was present and asked Mr C to enable it to gain access to remove this. Mr C refused and told the Council to get the relevant neighbour to provide access.
38. In late 2023 Mr C reported further waste being left at the back of a neighbouring property along the accessway. This was from a garage and may also contain asbestos.
39. The Council acknowledged Mr C’s report. It subsequently served a community protection warning against a neighbour. This was under the Anti-Social Behaviour Crime & Policing Act 2014 for accumulation of waste which was having a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality and was unreasonable. It informed Mr C.
40. A month later, the Council issued a community protection notice against Mr C’s neighbour as the garage waste had not been removed. It arranged for the asbestos to be inspected by its Environmental Health officer, the Health & Safety Executive, and a waste company, which all found it to be low risk. The garage waste was subsequently removed. It inspected the area again soon after and found it had been cleared and was tidy.

Mr C’s complaint

41. In January 2024 Mr C complained to the Council about its handling of his reported waste concerns in the accessway and anti-social behaviour. Mr C also asked his local MP and Councillor for support. Mr C has continued to raise his concerns and complaints to the Council since. The key points of Mr C’s complaints and the Council’s responses were:
• It had previously removed a large amount of waste from the area and had been found at fault by the Ombudsman, but it was continuing to fail to take enough action for fly-tipping and use of unlicenced skips;

The Council explained it had previously removed waste from the area as a gesture of goodwill. This did not mean it was responsible for the area, which it had found to be private and under the responsibility of the landowners, including Mr C. It could therefore not require skips to be licenced. It also explained the Ombudsman had not found it was responsible for enforcing the accessway.

• Two neighbours were now using the area to dump waste, including asbestos materials. He acknowledged some waste had been removed following the Council’s involvement, but this was only a small part. He said the Council had failed to take enough action against his neighbours;

The Council explained it had inspected and considered Mr C’s concerns on several occasions and found waste was stored in skips and no evidence of fly-tipping. It had taken some action against waste, including the asbestos, when it had found it appropriate to do so in line with its officer judgements when a breach had been found under anti-social behaviour legislation. However, it had found it was not responsible for and could not take action against the remaining waste Mr C continued to report.

• His property had been damaged as a result of skip use and heavy vehicles using the accessway;

The Council inspected and found no evidence of damage to Mr C’s property.

• A vehicle was stored on the side of the accessway and was used as a homeless dwelling by two individuals. He had approached his neighbour who denied this. Mr C reported the issue to the police, but no action was taken. He said the Council should take action to restrict parking, key access and use of the accessway;

The Council explained its street intervention team had inspected but found no evidence of rough sleeping or anti-social behaviour. It could not address the parking, key access or use of the access way as this was a private road.

• He had experienced antisocial behaviour and harassment from his neighbour, or individuals known to his neighbour, as a result of the Council’s inaction; and

The Council explained it had not found evidence to substantiate Mr C’s claims around anti-social behaviour. It said Mr C had correctly reported criminal matters such as threatening behaviour and harassment to the police, but it had also not found evidence to substantiate his concerns.

• It had not responded to all his reported concerns, and refused to investigate unless he made a complaint. He also said it had wrongly told his neighbour he had raised concerns.

The Council found it had handled Mr C’s concerns, complaints and communication appropriately. It explained it had not ignored his communication and provided its responses and updates when relevant. It said it had asked him to raise a complaint as he had persistently referred to officer’s poor handling of his concerns. It had also referred his concerns about breaching his data rights to its Information Governance team and offered Mr C and his neighbours’ mediation.

42. Following Mr C’s continued reporting of the waste issues to various officers and email accounts, including his criticism of its service, the Council decided to restrict Mr C’s communication access. It informed him he can report waste concerns such as fly-tipping but only through its website.
43. The Council’s information governance team did not find it had breached Mr C’s data protection rights. It explained this was because his neighbours were already well aware he had and continued to report concerns about waste, and Mr C had himself discussed this with his neighbours.
44. Mr C remains unhappy with the Council’s responses and its handling of his concerns. He has not agreed to mediation with his neighbours and asked the Ombudsman to consider his complaint.

Analysis and findings

Waste enforcement

45. The evidence shows the Council has considered Mr C’s reports and complaints about his neighbour’s waste for several years, including his concerns in 2023. In doing so it has inspected the area on several occasions to decide whether in its view the waste present required it to take action.
46. I have found no fault in the process the Council followed to reach its views. It therefore reached decisions its was entitled to make, and I cannot criticise such decisions. In reaching my view, I was considered the Council:
• found the waste stored in skips did not require a licence as it was on private land, and it was not harmful to the environment. It considered whether it was reasonable and proportionate for it to take any action, but decided this was not a breach and it was not appropriate to take action;
• found some materials stored at property boundaries did contain asbestos and took action to have this inspected, served notice on Mr C’s neighbour, and arranged for materials to be removed;
• explained it was not responsible for overgrowth of an area on lease to a business, and Mr C and his neighbours were responsible for maintaining the accessway in line with the property deeds; and
• found no evidence of fly-tipping which required it to take any action.
47. In addition, I found the previous Council involvement and Ombudsman decision did not set a precedent which made the Council responsible for the accessway area. The Council has consistently been clear it is not responsible for the area which it considers private. Nor did the Ombudsman reach such a finding previously.

Anti-social behaviour

48. The evidence shows the Council considered Mr C’s allegations around his neighbours’ hazardous waste and anti-social behaviour within the area. In doing so, it inspected the area and arranged for waste to be assessed by appropriate agencies, it also arranged for its street intervention team to inspect whether anti-social behaviour was present and considered the police’s involvement.
49. I acknowledge Mr C does not believe the Council did enough and he wanted it to take more action, restrict parking, and remove key access to the accessway gate from some individuals. However, I have found no fault in the process the Council followed to reach its views. It therefore reached decisions it was entitled to make.
50. Mr C has correctly reported his concerns about threats and harassment to the police, which is the appropriate body to investigate and consider such matters. It also informed Mr C about review rights of such decision.

Communication, complaints handling, and data rights

51. I have not found fault by the Council in how it communicated with Mr C or how it handled his complaints. This is because it remained in communication with him each time he reported concerns about waste or anti-social behaviour.
52. I acknowledge Mr C feels the Council should have communicated more and provided more frequent updates. However, I found the Council could only provide this when it had inspected and considered his concerns. The evidence shows it provided updates and the outcome of its decisions without unnecessary delay.
53. Mr C also said the Council required him to submit complaints to investigate his concerns about waste further. In this case, I have not found this to be fault by the Council. This is because it had previously considered Mr C’s reported concerns and took steps to consider his ongoing concerns. However, as Mr C made accusations against officers and included several officers, teams, local councillors, and his local MP in his communication, it decided considering his reports through its complaint process was the best way forward.
54. I found this did therefore not prevent Mr C from reporting and have his concerns considered by the Council.

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Final decision

55. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman