Summary: The Ombudsman will not investigate this complaint about how the Council has dealt the complainant’s concerns about dog faeces in a neighbour’s garden. It is unlikely the Ombudsman would find fault by the Council and the complainant can seek a remedy in court.

The complaint

1. The complainant, who I refer to here as Mrs B, has complained the Council will not take action to deal with nuisance caused by dog faeces in her neighbour’s garden.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. It says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), 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 that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I have considered what Mrs B said in her complaint. I have also seen the Council’s response to her concerns.

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What I found

Background – statutory nuisance

6. Councils have powers to deal with a statutory nuisance under the Environmental Protection Act 1990. Whether something is a ‘statutory nuisance’ is a subjective decision made by qualified Environmental Health Officers.
7. Section 82 of the 1990 Act provides a specific right for a member of a public to complain to a magistrates’ court that they are suffering a statutory nuisance. The court will then decide if a statutory nuisance exists and what should be done about it.

Analysis

8. Mrs B complained to the Council that her neighbour allowed dog faeces to build up in her garden. She considers this is a nuisance and a health hazard.
9. The Council has investigated Mrs B’s concerns but decided there was not a statutory nuisance and so it could take no formal action. It did however ask the neighbour to keep her property cleaner and has suggested mediation.
10. I consider the Council has responded properly to Mrs B’s concerns and it was for the Council to decide if a statutory nuisance exists. As it has decided this is not the case, it cannot take any action against Mrs B’s neighbour.
11. It is open to Mrs B to seek a remedy in a magistrates’ court if she disagrees with the Council’s view.

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Final decision

12. I have decided we will not investigate this complaint. This is because we are unlikely to find fault by the Council and Mrs B can seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman