Summary: Ms X complained the Council failed to act over the condition of two derelict properties near her home. She said the condition of the properties encourages fly-tipping and rodents, which is a public health issue impacting her, and the community. There was no fault in the Council’s consideration of its available powers or in its response to the issues Ms X complained about.

The complaint

1. Ms X complained the Council failed to act over the condition of two derelict properties near her home.
2. One of the properties is privately owned and Ms X said it has a huge amount of rubbish at the front because of repeated fly-tipping. The second property is Council owned.
3. Ms X said the condition of both properties encourages fly-tipping and rodents, which is a public health issue impacting her, and the community.
4. Ms X wanted the Council to serve an abatement notice on the private owner to make them remove the rubbish. She also wanted the Council to acquire the privately owned property through a Compulsory Purchase Order (CPO) so it could carry out repairs.

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The Ombudsman’s role and powers

5. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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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What I have and have not investigated

7. I investigated events from October 2022 through to February 2024. However, I have included details of earlier events for context.
8. Complaints about repair and maintenance of council owned properties would usually be outside the Ombudsman's jurisdiction, because the Council is acting as a social landlord (under the Housing Act 1996 and Social Landlord Housing (Regulation) Act 2023). However, in this case, the Council property is unoccupied. Ms X is not a Council tenant, and the Council was not acting in its role as a social landlord. The issues in this case relate to the condition of the land and building, engaging the Council’s powers under separate legislation (such as the Environmental Protection Act 1990). The Ombudsman therefore can investigate these issues.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Fly-tipping

11. Fly-tipping is illegal dumping of liquid or solid waste on land or in water. The waste is usually dumped to avoid disposal costs.
12. Councils must ensure, so far as is practicable, clearance of litter and refuse from ‘relevant land’. (Environmental Protection Act 1990, section 89(1))
13. The Government has published guidance setting out councils’ responsibilities to tackle fly-tipping. It says councils must remove and dispose of all fly-tipped waste if it’s on ‘relevant land’.
14. Separate Government guidance explains that ‘relevant land’ is land which is open to the air on at least one side, under the direct control of the council, and is accessible to the public, with or without payment.
15. Councils should investigate fly-tipping on relevant land, and may choose to pursue enforcement action.
16. If a landowner reports fly-tipped waste on their land, councils can choose whether to investigate. However, councils have no obligation to clear fly-tipped waste on private land. The landowner will decide how to deal with the waste.

Statutory nuisances

17. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
18. Statutory nuisance can include the accumulation of deposits on premises.
19. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.

20. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits.
21. Officers will use their professional judgement to decide whether a statutory nuisance exists.
22. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Compulsory purchase orders

23. Compulsory purchase orders enable councils to enforce the sale of privately owned land for public use.
24. Government guidance says councils should use these powers where it is expedient to do so and where there is a compelling case in the public interest to make a compulsory purchase order.
25. Before using these powers, councils should consider the impact on the affected owners and occupiers, and should try to reach an agreement to buy the land.
26. Compulsory purchase is intended as a last resort. However, councils do not have to wait for negotiations to break down, or for the landowner to engage with them, before starting the compulsory purchase process.

Other council powers relating to waste and the condition of land

27. If it appears to a local planning authority that the amenity of a part of their area, or of an adjoining area, is adversely affected by the condition of land in their area, it can serve on the owner and occupier of land a notice requiring steps to remedy the condition of the land within a certain time. (Town and Country Planning Act 1990, section 215)
28. Councils can take steps to remove rubbish, are they think necessary, in the interests of amenity, if it appears to it that there is rubbish on any land in the open air in their area which is seriously detrimental to the amenities of the neighbourhood. (Public Health Act 1961, section 34)
29. Councils have the power to issue community protection notices, if the conduct of a person is having a detrimental effect on quality of life of those in the locality, is persistent and continuing in nature and is unreasonable. The notice will direct the individual to stop causing the problem and it could also require the person to take reasonable steps to ensure that it does not occur again. (Anti-social Behaviour, Crime and Policing Act 2014, section 43)

What happened

30. I have summarised below some key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
31. Ms X’s local councillor approached the Council on her behalf in July 2023 about fly-tipping and rubbish at two derelict properties near Ms X’s home. One of the properties is privately owned. I will refer to this as Property One. The second property is owned by the Council. I will refer to this as Property Two. Ms X wanted the Council to obtain a compulsory purchase order (CPO) to seize Property One and tidy it.
32. The Council told the local councillor it does not have the power to seize unoccupied houses. It said there is a mechanism for a CPO but only in specific circumstances. It said it would look into the fly-tipping.
33. The Council contacted the owner of Property One asking them to remove the fly-tipped waste from their land.
34. The Council had no further contact from Ms X about Property One after July 2023, so it closed the case.
35. Ms X complained to the Council. She said the two properties had been derelict for 10 years. She wanted to know what action the Council had taken, and what it proposed to do going forward. She asked what action the Council intended to take to make the owner of Property One remove rubbish from their land and ensure there is no further build up. She said the rubbish in both gardens is a public health matter that encourages rodents.
36. The Council sent its stage one complaint response on 30 October 2023. It said:
• It did not own both properties. The damage to the privately owned Property One has affected the structure of the Council owned Property Two, meaning the Council cannot relet it.
• It made various attempts for the private owner to repair or sell Property One, but without success. It has therefore included the property in its draft capital programme for action, which could include a CPO. It will decide on this in the coming months, but CPO’s can take a long time. The Council will try to gain ownership by other means if possible.
• It visits Property Two periodically to remove fly-tipped waste and do garden maintenance. It visited the site 42 times in the past six years and will visit every month to check its condition. It erected a fence to discourage fly-tipping, which has prevented larger or industrial scale tipping but has not been completely effective. It also fined an individual where it could trace waste back to them.
• It would ask its Environmental Health department whether it can force the owner of Property Two to clean up their garden.
37. Ms X asked to escalate her complaint to stage two. She said the Council had not provided specific details about the steps it took to resolve the issues, and had not given a timeline for any future action. She appreciated the work done to remove rubbish from Property Two, but said there was a failure to address the rubbish at Property One, and how the Council would enforce this.
38. The Council sent its final complaint response on 15 February 2024. It said:
• It worked to clear and manage the garden at Property Two where it could, but its remit does not extend to Property One.
• The damage caused to Property One also damaged Property Two as well. The repair works need to be carried out at the same time. The Council tried to buy Property One, but the previous owner decided to sell it privately. The Council contacted the current owner to meet and discuss repairs. The Council then tried to buy Property One again but could not agree a price. The current owner then gained planning permission to develop Property One. While they did start the work, they did not make significant progress. The Council made several visits and sent several warning letters around this time. It made further offers to buy Property One, but the owner rejected them. The owner then said they could not continue the work due to the COVID-19 pandemic. The Council met the owner in May 2021 to discuss the work, but has been unable to contact them since April 2022.
• While Property One remains in private ownership the Council’s ability to repair and re-instate either property is limited. A CPO is a long and expensive process. Due to a lack of resources, the Council did not intend to pursue this. It said the recent financial restrictions placed on the Council meant it can only deliver its statutory duties. It did not have a statutory duty to get a CPO, so this was not currently an option.
• Officers will continue to respond to reports of fly-tipping at Property Two, and would continue to explore alternative ways of repairing both properties.
• It does not have a statutory duty to remove, or enforce the removal of, rubbish from the garden of a private property. It said it can only act where it considers a statutory nuisance exists. It investigated complaints about Property One in 2016, 2018, 2019 and 2020 but did not find there was a statutory nuisance caused to neighbours by the property condition or material on the property. It said it had not received further complaints about the condition of Property Two. Due to the financial restrictions on the Council, it did not intend to undertake further intervention.

My investigation

39. The Council told me it wrote to the owner of Property One on 16 June 2016, stressing the importance of getting the empty properties back into use.
40. It then sent further letters on 9 August 2016, 19 April 2018, 2 August 2018, and 31 August 2018, repeating its concerns after the owner did not carry out significant improvement works.
41. The Council also wrote to the owner of Property One on 6 November 2019, asking them to get back in touch after several telephone calls went unanswered.
42. The Council provided me with evidence of its internal communications as part of my investigation. This confirms the Council tried to get the owner of Property One to complete repairs. It also tried to buy the property. This was unsuccessful because the owner was uncooperative and unrealistic about the value of the property. The Council therefore included Property One in a draft capital programme for action, up to and including compulsory purchase if necessary, and to repair the property. However, due to costs and complexities, the Council still wished to buy the property if possible.
43. The Council said it has not received any complaints suggesting Property One is causing a statutory nuisance. Officers who attended found the rubbish did not smell and did not appear noxious, and they had not seen anything decaying or putrefying. The Council would except complaints from close neighbours if this was the case, or if there was a rodent infestation problem.
44. The Council told me, while it has the power to serve a notice under section 215 of the Town and Country Planning Act 1990, for land or buildings in an unsightly condition that may be detrimental to the amenity of the neighbourhood, it would be difficult in a case of extreme dilapidation such as this. The notice would need to specify all works needed to bring the whole of Property One up to a reasonable standard, which would be an extensive schedule. The Council does not consider this would be enforceable in practical terms.
45. The Council’s internal communications show it cleared waste from Property Two, which it owns, and issued someone with a fine as part of its fly-tipping investigation. Officers attended in July, September and October 2023 to remove fly-tipping and cut back the garden.
46. The Council told me officers have attended several times since then. It is aware there is an ongoing fly-tipping issue and officers will continue to attend.

Analysis

47. The Council is not at fault for the fly-tipping and waste itself, nor for the condition of either property.
48. I found the Council acted to remove fly-tipped waste from Property Two, which it owns. It also erected a fence to try to prevent the problem, and pursued enforcement action against someone it identified as being responsible for some of the waste.
49. The Council has a power, not a duty, to investigate fly-tipping on privately owned land, if asked by the landowner. But it has no duty to remove fly-tipped waste from private land, and it cannot force the landowner unless the waste poses an environmental risk or amounts to a statutory nuisance under the Environment Protection Act 1990.
50. The Council considered whether the build-up of waste at Property One amounted to a statutory nuisance, but officers decided that was not the case.
51. The Council was in discussions with the owner of Property One about buying the property and raised the issue about fly-tipped waste. The Council was not at fault for trying to achieve informal, negotiated, solutions before considering the use of any relevant enforcement powers.
52. The Council considered a CPO for Property One at the same time as trying to buy it. This is in keeping with Government guidance. The Council was also considering including the property in a scheme of works for the area.
53. The Council does not consider it would be practical or enforceable to serve an improvement notice under section 215 of the Town and County Planning Act 1990.
54. It is important to stress that while the different legislation I have cited gives the Council certain powers, these are not duties. The only relevant duty the Council had in this case was to remove fly-tipped waste from land it owns, which it did. We except councils to consider their available powers in response to an issue, but the final decision on whether to exercise those powers is at the Council’s discretion. We do not criticise councils where they have properly considered their powers and given reasons not to use them.
55. I found the Council properly considered its available powers, including a CPO, as a solution when it could not buy Property One and when the owner did not carry out repair or maintenance works. The Council was therefore not at fault.
56. The Council’s financial situation and budget constraints meant it took an operational decision not to provide services which it does not have a statutory duty to provide. The Council is entitled to make such decisions, and this is not something the Ombudsman can criticise.
57. Because the Council does not have a statutory duty to take further action against the owner of Property One, it does not intend to do anything more at present. That could change in future if the Council’s financial situation improves, but that will be for the Council to decide.
58. While I appreciate the condition of the properties has been a long-standing issue, and is an eyesore for neighbours, I have not seen evidence of fault in the Council’s actions.

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Final Decision

59. There was no fault in the Council’s consideration of its available powers or in its response to the issues Ms X complained about.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman