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Bedford Borough Council (20 006 898)

Category : Environment and regulation > COVID-19

Decision : Upheld

Decision date : 02 Jul 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council delayed removing harmful waste from his neighbour’s garden. He said this affected his health and well-being and spoilt the enjoyment of his home. The Ombudsman found fault causing injustice when the Council allowed matters to drift and failed to consider alternate enforcement measures sooner.

The complaint

  1. Mr X complained the Council delayed removing harmful waste from his neighbour’s garden. He said the waste posed an environmental threat which affected his health and wellbeing and spoilt the enjoyment of his home.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.

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How I considered this complaint

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • The Council’s nuisance procedure.
    • The Council’s bulky waste collection service procedure.
    • The Environmental Protection Act 1990.
    • The Prevention of Damage by Pests Act 1949.
    • The Anti-social Behaviour, Crime and Policing Act 2014.
  2. Mr X 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

Legislation

  1. Under section 79 of the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance.
  2. For the issue to be classed as a statutory nuisance it must do one of the following:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises.
    • Injure health or be likely to injure health.
  3. Section 4 of the Prevention of Damage by Pests Act 1949 (PDPA) gives councils the power to serve a notice on the occupier of a house if it believes steps need to be taken to keep the land free of mice and rats.
  4. If an occupier fails to take the steps needed, a council may take the steps itself and recover any expenses from the occupier.
  5. Section 43 of the Anti-social Behaviour, Crime and Policing Act 2014 (ASBCPA) gives councils the power to serve a community protection notice (CPN) on any person who continuously acts in an unreasonable way which has a detrimental effect on the quality of life of nearby residents.
  6. If a person fails to comply with a CPN, a council may carry out any work needed and recover the cost from them.

Council policy

  1. The Council’s procedure defines a nuisance as an unlawful interference with a person’s use or enjoyment of land. That includes rubbish or furniture from a neighbouring garden or on private land.
  2. When the Council receives a nuisance report it will respond in 5 to 10 working days. Officers assess waste complaints and decide their priority. Factors include things like amount of waste, type of waste, and location of waste. Priority is given for waste which decays. Lower priority is given for materials like plastic or metal.

Waste

  1. The Council runs a bulky waste collection service for items too large for regular household collections. The type of items the Council can collect includes beds, mattresses, televisions, white goods, furniture, and bikes. To arrange a bulky waste collection, a resident must telephone the Council, pay a fee (based on the number of items), and select a collection date. The Council may need to visit the resident and provide a quote for larger collections.
  2. The government published non-statutory guidance to local authorities on 7 April 2020 (updated 3 June 2020) explaining how they should prioritise waste and recycling collections.
  3. Services that are a legal requirement or likely to have a significant impact on environmental and human health were a high priority. Services with minimal impact and minimal risk to human health were low priority. Bulky items, like furniture and fridges, were a low priority. Councils could consider suspending services if necessary.

What happened

  1. Early in 2020, Mr X’s next-door neighbour started filling their front garden with rubbish. The rubbish included bags of household waste and larger items, like furniture.
  2. In March 2020, the government announced that people must stay at home and avoid non-essential journeys in response to the COVID-19 pandemic. In common with other local authorities, the Council closed its household waste recycling centre and suspended its bulky waste collection service. Household waste collections continued as normal.
  3. The Council received a report about a build up of waste in front of Mr X’s neighbour’s house from another resident on 6 April. An officer inspected the waste on 7 April. Mr X’s neighbour had tried to arrange a bulky waste collection from the Council in February, but the Council then suspended collections due to COVID-19. After speaking to Mr X’s neighbour, the Council ordered them a larger household waste bin.
  4. Mr X reported the waste build up to the Council on 15 April. The Council asked Mr X for photographs so it could assess the type and extent of waste.
  5. Mr X sent photographs to the Council on 21 April. He said his neighbour removed some waste but then added more.
  6. The Council updated Mr X on 22 April. It said it visited his neighbour as part of its investigation and explained his neighbour tried to arrange a bulky waste collection just before the Council suspended the service because of COVID-19. It said private waste contractors were still operating and it would give his neighbour 14 days to remove the waste.
  7. On 23 April, the Council sent a first PDPA warning letter to Mr X’s neighbour.
  8. In May, the government published advice encouraging councils to re-open household waste recycling centres. This was subject to councils risk assessing how the centres would safely operate.
  9. A Council officer visited Mr X’s neighbour on 7 May. They had removed the bags of household waste and new larger bins had been delivered. Some bulky items remained, such as a sofa, stairgate, toys, and a fridge.
  10. On 11 May, the Council re-opened its household waste recycling centre by appointment only. It also re-started its bulky waste collection service. On the same day, the Council sent a second PDPA warning letter to Mr X’s neighbour about the remaining waste.
  11. The Council updated Mr X again on 14 May, telling him his neighbour had removed most of the household waste, but a sofa and some bulky items remained. The Council said it gave Mr X’s neighbour 14 days to remove the items and it had powers to remove the waste and charge Mr X’s neighbour if they did not comply.
  12. Mr X sent more pictures to the Council on 21 May. He said the mess was large and smelt. The Council said it was preparing a bulky waste collection quote for his neighbour.
  13. Mr X emailed the Council on 5 June saying his neighbour’s waste had increased and was filling their garden. The Council said it believed his neighbour was moving waste to their garden ready to be removed, but its service times for quotes and collections was longer than normal.
  14. Mr X sent the Council another picture of the waste on 23 June. He said it had gone on too long and was attracting flies. He said he would contact the housing association who owned his neighbour’s house.
  15. The Council told Mr X it had to work flexibly with residents in the current climate. It spoke with his neighbour again.
  16. The Council served Mr X’s neighbour with a PDPA notice on 25 June, giving them 21 days to clear the waste.
  17. A Council officer spoke to Mr X’s neighbour on 23 July and 10 August. The officer gave them a final warning and agreed to extend the deadline.
  18. Mr X’s neighbour had still not arranged a collection by 18 August. The Council got a quote to remove the waste from its commercial services department of £628.14. An officer spoke to the housing association who owned Mr X’s neighbour’s house. They asked the housing association if they could remove the waste or arrange for it to be removed for a cheaper price. The housing association said it was not possible.
  19. A team leader at the Council reviewed the case on 25 August. They decided a CPN was more suitable than notices under the PDPA because Mr X’s neighbour had removed the waste at risk of decay. CPNs have better enforcement powers, including fixed penalty notices and ensuring continued compliance with simpler ways to carry out remedial works.
  20. The Council sent Mr X’s neighbour a CPN warning letter on 27 August, giving them 7 days to clear the waste or it would serve a CPN.
  21. An officer visited Mr X’s neighbour on 3 September and found waste still in their garden. The Council issued Mr X’s neighbour with a CPN giving them 21 days to comply or appeal.
  22. Mr X complained to the Council about its handling of his neighbour nuisance complaint. He said nothing happened since April and case officers lied, promising the waste would be cleared. He wanted the Council to clear the waste and prosecute his neighbour.
  23. The Council responded on 15 September. It said the case officer’s first informal meeting with his neighbour to ask them to remove the waste was not successful. In line with the Council’s staged approach, it then took formal enforcement action. It said the investigation was continuing so it could not provide more details. It apologised for the time it had taken to resolve the matter and for not keeping Mr X suitably updated. It said the Council had to follow the correct process when gathering evidence to take enforcement action and that takes time.
  24. Mr X was unhappy with the Council’s response as nothing was being done and his neighbours kept adding more waste. He said it was causing a smell and he should not have to put up with it. He said other neighbours had also complained, and his next-door neighbour was abusive if it was mentioned to them.
  25. Mr X’s neighbour spoke to the Council on 30 September to arrange a bulky waste collection Due to high demand, the earliest collection date was 2 November. However, the Council collected Mr X’s neighbour’s waste as a priority on 5 October.
  26. The Council sent its final complaint response on 7 October. It said there were some areas the Council could learn and improve. It said the process took longer due to the impact of COVID-19 on its workload. It said while considering Mr X’s complaint it had brought the bulky waste collection date forward by several weeks to resolve the matter.
  27. Mr X brought his complaint to the Ombudsman on 22 October 2020. He said the Council was negligent and he was unhappy with its lack of action. While the waste was present, Mr X could not use his garden or open windows due to the smell. That was particularly distressing during the national lockdown period. Returning home to see the waste was upsetting and he wanted the Council to compensate him.

Response to my enquiries

  1. The Council told me Mr X’s neighbour initially cleared their household waste. The final bulky waste collection took two freezers, five sofas, two televisions, two pushchairs, a mattress, a bedframe, a swimming pool, a washing line, children’s toys, and a baby chair.
  2. The Council does not investigate all nuisance reports under the Environmental Protection Act 1990. It is for the case officer to decide the best enforcement action. In this case, the PDPA was first used, then the ASBCPA.
  3. Mr X’s original complaint was about decaying waste, so the case officer investigated under the PDPA because of the risk of vermin. Once the household waste was removed in May 2020, the public health risk was removed. The case officer then issued a CPN under the ASBCPA. That meant the Council could impose long-term management conditions on Mr X’s neighbour to ensure it did not happen again.
  4. The Council’s policy does not set specific timeframes to deal with waste build up, because enforcement action is considered on a case-by-case basis depending on the type of waste and risk to health.
  5. The Council said it suspended its recycling centre and bulky waste collection services during the first national COVID-19 lockdown. When services resumed, the recycling centre opened by appointment only. That meant the Council had more demand for bulky waste collections.

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Analysis

  1. When the Council received the reports of waste in Mr X’s neighbour’s garden, it responded in line with its procedure. It visited the site to inspect the problem and took an informal approach by asking Mr X’s neighbour to clear the waste. It ordered a larger bin for the excess household waste. The Council was understanding, because its recycling centre had been closed and its bulky waste collection service had been suspended. I do not criticise the Council for its approach.
  2. The Council then took formal action, issuing a warning under the PDPA. Despite clearing the household waste, unfortunately Mr X’s neighbour did not clear the bulky waste. The Council continued to send warnings and notices under the PDPA, but without success.
  3. A team leader reviewed the case in August, more than four months after a resident first raised the nuisance complaint. They decided a CPN was more suitable as Mr X’s neighbour had removed the decaying waste in May. The Council initially acted under the PDPA, which it was entitled to do. That was effective in getting Mr X’s neighbour to clear household waste at risk of decay. However, the Council then let matters drift with no resolution before issuing a CPN. It was clear from Mr X’s ongoing complaints the Council’s actions were not having the desired effect. It should have more promptly considered suitable alternate action to try to resolve the situation. That amounted to fault.
  4. The team leader noted CPNs have better enforcement powers. Mr X’s neighbour arranged a bulky waste collection about a month after the CPN was issued. I cannot say for certain that using a CPN earlier would have resolved matters sooner, as Mr X’s neighbour was also responsible for delays. However, on balance I consider there is enough evidence to suggest the waste would have been collected sooner if the Council had been more proactive in using alternate enforcement powers earlier.
  5. Despite the Council not issuing the CPN sooner, it still acted. It continued to speak to Mr X’s neighbour and send warnings. It also spoke to the housing association and asked them to remove the waste. Once Mr X’s neighbour paid for a bulky waste collection, there was no significant delay in the Council collecting the waste.
  6. Mr X wanted the Council to remove the waste and prosecute his neighbour. I consider it was reasonable the Council did not remove the waste and charge Mr X’s neighbour. The quote the Council got was about £600, which is a significant sum. Enforcement action is at the Council’s discretion. It told Mr X it had to work flexibly with residents in the current climate and I do not criticise it for that approach.
  7. Mr X said the Council lied about the action it was taking. I have not seen evidence the Council lied, but it could have been clearer about what was happening, and it could have better managed Mr X’s expectations. Its complaint response recognised that.

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Injustice

  1. The delays in arranging for his neighbour’s waste to be removed did cause Mr X an injustice. He had to put up with the sight and smell of the waste and it spoilt the enjoyment of his home and garden.
  2. The fault for the waste remaining so long, and for the nuisance it caused, mainly rests with Mr X’s neighbour. However, as above, on balance I consider the Council should have been more proactive in keeping under review the efficacy of its actions. It should have been prepared to adapt sooner when its initial course of action was not having the desired effect. That contributed to the delays and to the distress Mr X suffered. The Council should therefore offer Mr X a remedy.

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Agreed action

  1. Within four weeks of my final decision, the Council agreed to apologise to Mr X and pay him £200 to recognise the distress its fault caused.

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Final decision

  1. I have completed my investigation. There was fault causing injustice when the Council allowed matters to drift and failed to consider alternate enforcement measures sooner.

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Investigator's decision on behalf of the Ombudsman

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