Summary: Mr B complained the Council had refused to remove drug related litter from the private road where he lives. He said this meant the management association for the road had to arrange and pay for the disposal of the litter. That increased the charge all the residents paid for the upkeep of the road. There was fault by the Council in its communication with Mr B but no further action is necessary.

The complaint

1. I refer to the complainant as Mr B. He complained the Council had refused to remove drug related litter from the private road where he lives. He said this meant the management association for the road had to arrange and pay for the disposal of the litter. That increased the charge all the residents paid for the upkeep of the road.

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The Ombudsman’s role and powers

2. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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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How I considered this complaint

4. I considered the complaint and documents provided by Mr B and spoke to him I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

5. Mr B lives on a private road. The Government website says that the local council will arrange for the disposal of drugs related items which are in public places. Although the road is not maintainable by the Council there is public access allowed to a park and pedestrian and cycle access to avoid local congestion. Mr B also found a definition of a public place in the Criminal Justice Act 1972 which says a public place "includes any highway and any other premises or place to which the public have or are permitted to have access, whether on payment or otherwise."

6. Mr B put these points to the Council. Officers replied saying that the Council did not remove fly tipping of any nature from private land.

Analysis

7. The Council’s website has a section on drugs litter. It says that it has a system in place to remove dangerous drugs paraphernalia quickly and effectively to ensure the safety of the public. It says that anyone who finds needles and syringes should not touch it and report it immediately to the Council. The Council’s website has a section on fly-tipping. This says that fly-tipping on private land is the responsibility of the owner/occupier to remove.
8. Mr B explained why he considered that this area was not private land because the public had access to it and therefore it was for the Council to remove the drugs litter.
9. In responding to my enquiries about the complaint the Council reiterated its position that it does not remove fly-tipping from private land. In responding to the draft of this decision it confirmed that the Environmental Protection Act 1990 sets out a duty for certain local authorities (defined as “principal litter authorities”) to keep 'relevant land' clear of litter and refuse. Relevant land is defined for different bodies but for the Council it includes land which is open to the air and is land which is under the direct control of the authority to which the public are entitled or permitted to have access with or without payment and maintained highways. The Council did not explain this to Mr B when he had raised questions about the definition of the land and access by the public. The Council did not provide an adequate response to Mr B of where its powers derived from and why it did not consider it was responsible for the removal of the drugs related items on the road where he lives.
10. Although I consider this was a failure in the communication with Mr B I do not consider that any further action is now necessary by the Council. Its position is clear and there is no fault in how it has come to that view. I do not consider there was significant injustice caused to Mr B from the lack of explanation from the Council.
11. The Council’s website says that members of the public should report drugs litter to the Council. It does not mention that this does not apply to private land. Again, in responding to the draft of this statement, the Council has clarified its position. It said the purpose of the webpage is not simply to allow the Council to remove the litter. Government guidance on tackling drug related litter makes it clear that there is a need for multi-agency working and refers to other action that can be taken for specific types of land. It said there could be many reasons why the Council may want to receive reports of drug activity and drug litter on land which it is not responsible for. Including being able to contact the land owner, such as a school, college, statutory undertaker or private land owner. It also allows the Council to consider whether the police should be notified and whether it should use any of its other powers due to a wider issue with anti-social behaviour. By restricting the website to referring to public land, or putting in further detail on the different types of land, the Council risked not giving clear advice on this issue.
12. I accept the point the Council makes about the purpose of keeping the information on the website broad because there are other reasons why it would wish to be informed about drugs related litter.

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Final decision

13. There was fault by the Council in its communication with Mr B but no further action is necessary.

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Investigator's decision on behalf of the Ombudsman