Summary: The Council was not at fault for deciding not to conduct covert surveillance of Mr B’s local park to identify individuals responsible for fly-tipping, and for not taking enforcement action. The Council properly considered the use of its powers but decided not to use them, and explained why. As a result, I cannot question its decision.

The complaint

1. The complainant, whom I refer to as Mr B, complains that he has reported litter and fly-tipping on his local park to the Council several times, but was not happy with the Council’s response. He says the Council has not done enough to remove waste or to prevent this happening in future.

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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 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. (Local Government Act 1974, section 34(3), as amended)
3. 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)

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How I considered this complaint

4. I spoke to Mr B about his complaint, and considered information from Mr B and the Council.
5. I wrote to Mr B and the Council with my draft decision and considered their comments.

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What I found

The Environmental Protection Act 1990

6. Section 33 of the Act sets out the law around fly-tipping, or ‘depositing controlled waste’. A person who breaches section 33 is committing an offence and may be subject to a fine or a prison sentence.
7. Under section 33ZA of the Act, councils have the power to serve a fixed penalty notice if they suspect a person of fly-tipping. If the person pays the penalty within 14 days, they cannot be convicted of the offence.
8. Councils also have the power to start proceedings against a person whom they suspect of fly-tipping. This will be heard by a Court, which can impose a fine, a prison sentence, or both.

What happened

9. Mr B complained to the Council on 28 June 2018 about its responses to his fly-tipping concerns.
10. The Council responded to Mr B’s complaint on 17 July. It said that, after each time Mr B had raised concerns about the park, the matter was passed to the Council’s service provider to address. However, the Council said it was not satisfied with the actions its provider took, so it arranged for an alternative contractor to conduct a major clearance of the site.
11. The Council also said Mr B’s local councillors had arranged a community meeting to try and address the concerns about fly-tipping and litter in the park.
12. Mr B complained to the Council again in August, and the Council responded. It said there had been more fly-tipping at his local park, and it would arrange for this to be cleared. It said it had reported the problem to its waste enforcement team, and asked him to report any future problems directly to that team.
13. Mr B complained again in November. The Council responded, saying it had now cleared the fly-tipping and litter Mr B had reported.
14. The Council says that, to take enforcement action, it needs an eye-witness account, the offender needs to be caught fly-tipping, or it needs other evidence which demonstrates who is committing the offence. It says it received no such evidence, and therefore could not proceed with enforcement action.
15. The Council also says it must be justified in taking covert surveillance action on a site in order to catch people fly-tipping. It says it considers the number of complaints it receives about a site and the number of fly-tipping incidents of which it is aware. It says it received contacts about the park from Mr B and from a local councillor, but the number of contacts it received did not justify the use of surveillance on the site.

Analysis

16. Councils have powers to take enforcement action against people they suspect of fly-tipping. As these are powers, rather than duties, it is for councils to decide what action, if any, to take.
17. Councils can also consider whether to take steps to prevent fly-tipping happening in future. This, again, is for councils to decide, and there is no statutory duty on them to act.
18. However, I would expect a council to consider use of its powers when it becomes aware of a fly-tipping issue. To fail to consider these powers or to explain its decision would be fault.
19. In Mr B’s case, the Council acted on Mr B’s correspondence by clearing fly-tipping from the park when he reported it. However, it appears that the issue kept re-occurring.
20. The Council has set out why, in its view, it is unable to take enforcement action against specific individuals, and has also said it does not consider covert surveillance to be a proportionate action to take, given the number of complaints it had received about the issue.
21. The decision about whether to take action in response to Mr B’s complaint was for the Council to make. It considered whether to use its powers but decided not to. It has explained its reasoning fully. I have found no fault with how the Council made its decision, so I cannot question the decision itself.

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Final decision

22. The Council was not at fault for deciding not to conduct covert surveillance of Mr B’s local park to identify individuals responsible for fly-tipping, and for not taking enforcement action. The Council properly considered the use of its powers but decided not to use them, and explained why. As a result, I cannot question its decision.

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Investigator's decision on behalf of the Ombudsman