Summary: We will not investigate this complaint about a Fixed Penalty Notice for leaving waste on the public highway. This is because the complainant could have raised a defence in court.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council wrongly issued him with a Fixed Penalty Notice (FPN) and failed to properly consider his evidence or appeal.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
3. The magistrates decide whether someone has committed an offence under the Environmental Protection Act 1990.

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How I considered this complaint

4. I considered information provided by Mr X and the Council. This includes the email correspondence about the offence and the appeal, photographs and the law. I considered our Assessment Code and invited Mr X to comment on a draft of this decision.

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My assessment

5. Mr X left building waste, in black bags, on the pavement. Mr X says he had ordered a skip which did not arrive; he found out about this after he taken the waste outside. He says he had no choice but to leave the bags on the path while he waited for a replacement skip.
6. The Council issued a FPN for leaving construction waste on the public highway. A FPN gives someone the chance to pay a fine and avoid prosecution. If the person does not pay the Council may start legal action. The magistrates then decide if the person committed an offence.
7. Mr X challenged the fine and explained the waste was only on the path while he waited for a replacement skip. In a couple of emails Mr X said he wanted to go to court so he could prove he had not committed an offence.
8. The Council rejected his appeal and said he had a legal duty to store and deposit waste correctly. It repeated it is an offence to leave waste on the public highway. The Council said that if he did not pay it would prosecute. It also said that he did not have to pay but could wait for the Council to take legal action.
9. Mr X paid the fine. The Council closed the case.
10. I will not investigate this complaint because Mr X could have withheld payment and then raised a defence in court. The magistrates would have decided whether he had committed an offence. I understand Mr X’s points about why he left the rubbish on the path but it is not my role to decide whether he committed an offence. That is the role of the courts. Mr X paid the fine so it is no longer possible for the court to consider the case.
11. Mr X is critical of the Council’s handling of his case. But, the Council followed the correct process which is the only issue I can consider. The crux of the matter is whether Mr X failed to store his waste correctly and that, as I have said, was a matter for the courts. In addition, Mr X said he wanted to go to court and the documents explained he could do that.

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Final decision

12. I will not investigate this complaint because Mr X could have raised a defence in court.

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Investigator's decision on behalf of the Ombudsman