Summary: We will not investigate Mr X’s complaint about the Council deciding not to take further action against the owner of nearby land which contains unauthorised waste. There is insufficient evidence of Council fault to justify us investigating.

The complaint

1. Mr X lives next to land whose owner has used the site for dumping, storage and burning of unauthorised materials. He complains the Council has failed to provide a complete and effective outcome by not formally requiring the owner to remove the remainder of the waste material.

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The Ombudsman’s role and powers

2. 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)
3. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information from Mr X and the Council, online maps, and the Ombudsman’s Assessment Code.

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My assessment

5. There is a duty on councils dealing with environmental matters to investigate reports of such issues in their areas. But councils’ enforcement powers are discretionary, so there is no duty on officers to enforce, even where they identify a breach or offence. It is for councils’ officers to decide whether to use their enforcement powers, in the wider public interest.
6. The Council has previously taken action by serving a Community Protection Notice and Statutory Nuisance Abatement Notice on the owner. The notices required the owner to stop bringing any new controlled waste on to the land and burning it. The notices did not require the owner to remove the material already on the site. This material is Mr X’s ongoing concern.
7. We are not an appeal body. We may only criticise a council decision where there is evidence of fault in the decision-making process and but for that fault a different decision would have been made. So we consider the process they have followed to make their decision. We cannot replace a decision with our own or someone else’s opinion if the decision was reached after following proper process.
8. In response to Mr X’s concerns about the materials on the site, the Council determined which of its discretionary powers it could use based on the land’s registered status and the evidence of the owner’s activities. Officers visited the site, considered video and photographs of the location and the owner’s actions. They used their professional judgement and experience and decided the remaining waste and its level of impact on the area did not warrant the Council taking further enforcement action to get it removed, and that such action was unlikely to succeed at court. That is a decision officers were entitled to take. We recognise Mr X disagrees with the Council’s decision not to use its enforcement powers. But it is not fault for a council to properly make a decision with which someone disagrees.
9. We understand Mr X is concerned the site’s owner may bring unauthorised material on to the land again. If he has evidence of this happening in future, he should report it to the Council for its consideration. Neither the Council nor any other body or person can prevent the site’s owner repeating past actions. But officers have taken steps to gather evidence to use if any future consideration of enforcement is needed. The Council has commissioned aerial photographs of the land to evidence what was there at the time of its latest investigations. This means that it would be able show if there are any changes to the land which are unauthorised, to support any future actions it may take. It would remain at the discretion of the Council what enforcement or other action, if any, it would take.
10. We realise Mr X may consider it unreasonable for the Council to rely on him or other residents reporting any future issues with the site. Councils might identify some sites where issues have previously occurred, which have significant impacts on many people, and make their own monitoring visits. But they cannot monitor all locations in their area in this way. It is not fault for a council to depend on citizens to report their environmental concerns to its officers to be investigated.

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Final decision

11. We will not investigate Mr X’s complaint because there is not enough evidence of Council fault to warrant us investigating.

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Investigator's decision on behalf of the Ombudsman