Summary: Mr B complains the Council has failed to take appropriate action to deal with rubbish dumped on privately owned land. The Ombudsman will not investigate the complaint because it is unlikely we can add to the investigation already carried out by the Council and an investigation is unlikely to lead to a different outcome.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council has failed to take appropriate action to deal with rubbish dumped on privately owned land near to a garage which he part-owns. Mr B says the Council has a statutory duty to act and that he has expended time and trouble in pursuing the matter.

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The Ombudsman’s role and powers

2. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. In considering the complaint I spoke to Mr B and reviewed the information he and the Council provided. I gave Mr B the opportunity to comment on my draft decision.

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What I found

4. Mr B co-owns a property which is rented out to tenants. Near the property is a block of garages, one of which he co-owns and rubbish is being dumped by them.
5. Mr B contacted the Council about the rubbish. It explained the land in question was not owned or managed by the Council but that it would be contacting the company which owns the land to seek removal of the rubbish.
6. The rubbish was not moved so Mr B made a formal complaint to the Council. An initial logging error meant the Council delayed in responding to it. In its response, the Council confirmed the land was privately owned and that it had no budget to keep such land free of rubbish and that it was the responsibility of the owners and occupiers to do so. The Council told Mr B the area had been checked and the amount of rubbish there did not warrant it taking further action beyond the issuing of advisory notices to residents which it had already done. It said if the problem got worse it would consider serving a Community Protection Notice (CPN) on all property owners and occupiers.
7. Mr B involved his local MP and the Council emailed her to explain the company which had owned the land had gone bankrupt and it had not been able to identify the current owner. However, it made clear it did not have a statutory responsibility to seek and find out who owns the land. It said it did have powers to take action against landowners and/or those with responsibility for keeping the land in a reasonable condition and that it would do so in this case if the situation got worse.
8. In a second email to the MP, the Council explained that due to the unusual situation, whereby the owners of the land are not the owners of the garages on the land, the use of CPNs would not be appropriate and that as the waste does not form a health hazard punitive public health legislation could not be used. It said it had previously issued Section 78 notices (under the Public Health Act 1936) to the residents concerned and this had resulted in some of the fly-tipped material being removed. However, it said that as there is no specific offence for non-compliance relating to this legislation, although the Council may recover any clear-up costs from those issued with the Notice, it had not pursued this option because it would penalise a number of residents that had no involvement in the matter.
9. The Council has confirmed that a recent visit to the site did not find a problem against which it would take any further action.

Assessment

10. Contrary to Mr B’s belief, it is not the case that if a company which owns land goes bankrupt then the land becomes Council land by default. The ultimate responsibility for the removal of rubbish lies with the owners and occupiers of the land.
11. The Council has explained the proportionate action it has taken and while I understand Mr B is not happy with this, there are insufficient grounds to warrant an investigation by the Ombudsman.
12. While I note the Council’s initial error in logging Mr B’s complaint caused delay, it apologised to him for this and we will not pursue this matter further.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because it is unlikely we can add to the investigation already carried out by the Council and an investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman