Summary: We will not investigate Mr X’s complaint about the Council not ordering a neighbour to remove waste from their property, and about complaint-handling delay. There is not enough evidence of Council fault to warrant us investigating. There is insufficient significant personal injustice caused to Mr X by the Council to justify an investigation. We also cannot achieve the outcome he seeks. We do not investigate council complaint-handling where we are not investigating the core issue giving rise to the complaint.

The complaint

1. Mr X and his partner Ms Y live next door to a property where there has been building work. Mr X says the contractors put rubble and hardcore up against his wall and fence. He complains the Council:
1. has not used its powers to have all the waste removed;
2. delayed when dealing with his complaint.
2. Mr X says the waste has pushed his wall out of line, broken his fence and fallen on to his land. He is concerned the wall may fall on a person, animal or car. Mr X says he and Ms Y have spent money instructing a lawyer to write to the neighbour, which they should not have had to do. Mr X wants the Council to use its contractors to repair his wall or pay his chosen builder to repair it.

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The Ombudsman’s role and powers

3. 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)
4. 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information from Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.

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My assessment

6. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision was reached after following proper process.
7. The Environmental Protection Act 1990 (EPA 1990) puts a duty on authorities such as councils to investigate complaints about statutory nuisances. This duty includes investigating reports about accumulations or deposits which are prejudicial to health or a nuisance. If an authority considers an incident is a statutory nuisance, the EPA 1990 gives it discretionary powers to use against the person responsible. They can start action to get the nuisance removed by serving an abatement notice. There is no duty on authorities to use their powers and they would not use them if they do not find a statutory nuisance.
8. In response to Mr X’s concerns, a Council officer visited the site. The officer did not identify the waste to be a statutory nuisance or prejudicial to health, nor did they consider it was likely to become one. The Council’s officers considered the evidence about the waste Mr X reported against the EPA 1990 and relevant caselaw to reach their decision. They concluded they had no grounds to use their EPA 1990 powers against Mr X’s neighbour.
9. Officers gathered relevant information about the matter by visiting. They considered the information against the relevant law and applied their professional judgement to make their decision. There is insufficient evidence of fault in the Council’s decision-making process here to warrant us investigating. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
10. Even if there had been fault by the Council here, we would not investigate. We recognise Mr X reports the neighbour’s waste has damaged his property which is his main claimed injustice. But any such damage has been caused by the neighbour or their contractor, not by the Council in its environmental protection role. Mr X’s claim of property damage from the waste is a private civil matter between him and the owners of the neighbouring property and is for an insurer or court to decide. We understand Ms Y has instructed legal representatives to write to the neighbours about this claim and Mr X considers a further injustice to be the cost to them of that letter. But even if the Council had used its EPA 1990 powers, that would not have resolved Mr X’s and Ms Y’s separate private civil claim for property damages. The Council’s powers to seek removal of waste are not a replacement for a private action about damage that waste may have done to someone’s property. There is insufficient significant personal injustice here caused by any action or inaction of the Council to warrant us investigating.
11. Mr X says the Council delayed in dealing with his complaint, not providing replies by indicated dates. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
12. We note the complaint outcome Mr X wants is for the Council to make or pay for repairs to his property. We cannot order councils to do or fund repairs to someone’s property. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.

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Final decision

13. We will not investigate Mr X’s complaint because:
• there is not enough evidence of Council fault to warrant us investigating; and
• there is insufficient significant personal injustice caused to him by the Council to justify an investigation; and
• we do not investigate councils’ complaint-handling where we are not investigating the core issues giving rise to the complaint; and
• we cannot achieve the outcome he seeks.

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Investigator's decision on behalf of the Ombudsman