Summary: Mr X complained about the Council’s lack of action to address fly tipping and its complaint handling causing a build up of waste and distress. We found no fault by the Council.

The complaint

1. Mr X complains the Council has failed to properly address fly tipping resulting in a build up of waste outside his business, affecting emergency access and causing distress. He also complains about the Council’s complaint handling.

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What I have and have not investigated

2. I have investigated the complaint above however I have not investigated matters arising prior to October 2021. This is because these are out of time and there is no good reason why Mr X could not have complained to us sooner.
3. I have not investigated new matters arising after October 2022 as these were premature at the time Mr X contacted us and the Council should have chance to investigate and reply.

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The Ombudsman’s role and powers

4. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
8. 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

9. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
10. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Waste collection

11. Councils have a duty to collect domestic waste and recycling from households. Many councils provide a weekly collection service but are not required to. Others only empty bins fortnightly.

Council’s refuse and recycling policy

12. The Council collects household waste and recycling every two weeks. However, it collects food and garden waste weekly.

Environmental Protection Act 1990 (“the EPA 1990”)

13. The EPA 1990 gives councils powers to require occupiers and landowners to remove waste unlawfully deposited on land (called ‘fly tipping’).
14. Section 34 imposes a duty to take care of your waste. A person who fails to meet this duty is liable to a fine.
15. Section 46 allows a council to issue a notice requiring a person to leave waste in a specified place for collection. If they breach this notice they are liable to a fine.
16. Section 47 allows a council to issue a notice requiring a person to leave commercial waste in a specified place for collection. If they breach this notice they are liable to a fine.
17. Section 87 makes it an offence to drop litter. A person guilty of this offence is liable to pay a fine.

Council’s enforcement policy

18. The Council publishes its enforcement policy on its website. This explains the Council will take best efforts to resolve any issues where the law may have been broken without taking formal action. The first step was to raise awareness and promote good practice. However, there may be occasions when it considers the breach to be serious and/or where informal action is not appropriate.
19. The Council will consider the following actions:
• A voluntary undertaking to rectify the breach and/or prevent recurrence.
• Issuing a statutory notice in respect of a breach. Failure to comply may lead to prosecution and/ or, where appropriate, the carrying out of work in default.
• Issuing fixed penalty notices or penalty charge notices. If paid, it will not take further enforcement action in respect of that breach.
• Seeking a direction from the court (in the form of an order or an injunction) that a breach is rectified and/or prevented from recurring. Failure to comply with a court order may lead to imprisonment.
• Issuing simple cautions where a person admits an offence and consents to the simple caution. Where a simple caution is offered and declined, the Council is likely to consider prosecution.
• Prosecuting in respect of serious or recurrent breaches.
20. Where more formal enforcement action, such as a simple caution or prosecution, is taken, the Council recognises there is likely to be an ongoing need for compliance advice and support, to prevent further breaches.

What happened

Communications with Mr X

21. Mr X reported fly tipping on five occasions from June to November 2021.
22. In November 2021 he complained to the Council about ongoing fly tipping and asked it to:
• provide information to residents to educate them
• relocate bin collection points
• collect bins more often
• install alley gates.
23. Mr X also said he was unhappy he had to report fly tipped waste before the Council would remove it.
24. The Council responded, in summary:
• It had sent letters to residents giving advice.
• It could not say where residents should store their bins.
• The alley was privately owned and it had no funding for an alley gate.
• It monitored the site so that it could investigate and find those responsible however residents still had to report fly tipping for it to clear this.
25. Mr X complained further. In summary he said:
• The Council sent residents letters in 2019 and should send these again. It should also speak to businesses.
• The Council should provide evidence of monitoring.
• He asked if the Council would adopt the alleyway.
• He asked again if the Council would collect bins more often.
• He said rubbish should have been cleared.
26. The Council gave a final response in December 2021, it said:
• It could not say where residents should store their bins.
• The alley was privately owned and it had no funding for an alley gate.
• It would collect waste as frequently as it did in other areas.
• It monitored the site.
• He could contact the Ombudsman if he remained unhappy.
27. Mr X said the Council did not address the following points raised:
• To resend letters and speak to businesses.
• To provide evidence of monitoring.
• To say if it would adopt the alleyway.
• To say if it would collect bins more often.
• To clear rubbish .
28. He also asked if the Council would install a sign to say “no fly tipping”.
29. The Council said:
• It monitored early in the mornings.
• It had addressed his queries regarding the alley gate.
• It did not consider it needed to empty bins more often.
• When its team visited following a report of fly tipping, if waste is present it logged a request for another team to remove it.
30. Mr X reported fly tipping in December 2021, May 2022, and July 2022. He says he made a further report in July as the Council closed the earlier ticket though waste remained for removal.
31. Mr X complained to the Council in July 2022. In summary he said:
• Fly tipping remained an ongoing issue.
• The lack of direction or any plans to tackle this was causing serious problems.
• He wanted a lasting resolution to the issue.
32. The Council responded, in summary:
• It monitored the area through regular visits.
• If it finds waste it will try to identify those responsible and if so, take enforcement action.
• Evidence to date suggests waste is being dumped by those in the area.
• It has issued notices and fines over the years.
• It will continue to carry out checks and take action where evidence allows.
• In the last seven months it has issued five notices and one fine.
• It has asked its team to clear waste and abandoned bins.
• It asks residents to report waste so it can take action to remove it quickly.
33. Mr X said in reply:
• He had not seen any waste collected unless following a report.
• He found evidence of rubbish coming from another location, suggesting it investigation was inadequate.
• The Council should install alley gates to control access to the area subject to fly tipping.
34. The Council said, in summary:
• It addressed the points raised in November 2021 and referred him to the Ombudsman.
• It said at that time it had no budget for alley gates.
35. Mr X told the Council he remained unhappy. The Council said it monitored the area yet did not take action unless or until residents raised a report.
36. Mr X complained to the Ombudsman in October 2022.
37. In November 2022 Mr X raised new complaints about waste left behind after the Council cleared fly tipping.

Council actions

38. In response to enquiries the Council confirmed it had no relevant published policies except the enforcement policy referred above. However, it would remove fly tipping or dumped items from alleyways, public highway or council land, within five working days of being reported. 
39. The Council provided a chronology of actions taken from October 2021 to November 2022. I note the following relevant to the complaint.
• Its flytipping team monitors the area weekly for fly tipping. This team will remove waste if found though it does not keep records of this. The Council has not said how often the team visits Mr X’s road nor has it provided evidence of weekly monitoring.
• Its neighbourhood team also monitors the area and it has evidenced this team logged seven requests for waste removal over the period.
• On an almost monthly basis the Council investigated, found evidence of fly tipping and took action in relation to Mr X’s road. The Council explained an offence must be witnessed, admitted or its correspondence ignored, before it can take enforcement action.
• The Council provided records to evidence the actions taken. On review these show the Council:
1. carried out 15 investigations into fly tipping from October 2021 to November 2022;
2. sent 15 letters to those suspected of fly tipping;
3. achieved compliance without formal action on one occasion;
4. issued 30 notices under the EPA 1990 section 36, 46, 47 or 87;
5. issued five fixed penalty notices (“FPN”) and prosecuted one person for non payment of a FPN.
40. The Council said it had not seen evidence of repeat or recurrent offenders.

Findings

41. The evidence provided by Council shows it is proactive in monitoring and investigating fly tipping offences along Mr X’s road. Further that it has considered informal action on each occasion and progressed to formal action when needed in line with its enforcement policy. I find no fault.
42. While the Council has not evidenced how often it monitors Mr X’s road for fly tipping it has no specific obligation in this regard. It is not in dispute that it removes waste following reports from residents. It does not have to do more than this. I find no fault.
43. It is not in dispute the Council sent letters giving advice to residents in the past. Its policy does not require it to send further letters, but to consider if this is necessary to prevent further breaches. In response to enquiries the Council has confirmed it had not seen subsequent breaches, therefore this part of its policy is not engaged.
44. On review of the correspondence exchanged I find the Council did not address every query Mr X raised, however it addressed the key points. While there was a shortfall in the level of communication this does not reach our threshold for a finding of fault.
45. I appreciate fly tipping is an ongoing issue affecting Mr X, however the evidence seen suggests the Council is addressing this in line with its policies. I therefore cannot find fault.

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Final decision

46. I have completed my investigation. This is because I find no evidence of fault in how the Council has addressed fly tipping in Mr X’s area.

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Investigator's decision on behalf of the Ombudsman