Summary: We will not investigate this complaint about the service of a Notice under the Prevention of Damage by Pests Act 1949. This is because the complainant has a right to appeal against the Notice in court.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council conspired with his neighbours and wrongly issued him with a Notice under the Prevention of Damage by Pests Act 1949 (‘the Act’).
2. He wants the Council to retract the Notice and provide copies of the photographic evidence used by the Council.

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The Ombudsman’s role and powers

3. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A (6) and 34B (8), as amended)
4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council says it received a report from neighbours that Mr X was leaving food waste in his garden which was being eaten by foxes, pigeons, and cats. Photographs were also provided.
8. The Council issued a Notice under the Prevention of Damage by Pests Act 1949 (‘the Act’) requiring all food waste and rubbish on the land behind his home to be removed. And to discontinue disposing of food waste in his back garden.
9. Unfortunately, the council failed to consider the time taken for postage and Mr X did not receive the Notice until after the date he was required to comply with its content.
10. Mr X complained to the Council which apologised for failing to take postal delivery time into account when dating the Notice. However, it considers the photographic evidence sufficient to allow the Notice to remain extant.
11. If Mr X disagrees with the Notice, he had a right to appeal against the Notice in the Magistrates Court. Therefore, the restriction described in paragraph 3 above applies.
12. Mr X wants copies of the photos used as evidence for issuing the Notice. If the Council refuses to provide the photos, it is reasonable to expect him to refer the matter to the Information Commissioner’s Office (ICO). That is because this is the body with specific powers and expertise to look into Freedom of Information Act and Environmental Information Regulations issues. The Information Commissioner’s Officer has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act.

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Final decision

13. We will not investigate Mr X’s complaint because he had a right to appeal against the Notice in Court. And it is reasonable to refer the matter of the photographs to the ICO if the Council refuses to provide them.

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Investigator's decision on behalf of the Ombudsman