Summary: We will not investigate this complaint about the frequency of the Council’s litter picking along the A34. Mr Q may go to court if he believes the Council is not meeting its statutory duty to keep the road clear of litter.

The complaint

1. The complainant, who I have called Mr Q, complained that Stockport Metropolitan Borough Council is in breach of its statutory duty to keep the A34 clear of litter. He does not accept that cleaning the road once a year satisfies the Council’s duty to keep the road clear.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered the information Mr Q provided. I considered Mr Q’s comments on a draft of this decision.

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What I found

Background

5. Councils have a duty under section 89 of the Environmental Protection Act 1990 (the EPA) to keep clean public highways for which they are responsible.
6. Section 91 of the EPA enables someone, after giving notice to the Council, to apply to the Magistrates’ Court for an order requiring it to remove litter. The Court may order the Council to pay the complainant’s costs.

Key facts

7. Mr Q complained to the Council about litter along the A34. The Council told Mr Q it maintained high speed roads in the Borough, including the A34, annually. It said it usually did this in June/July, and this included litter picking, among other things. It also told Mr Q that it would consider urgent, significant or general maintenance issues as they arose and, if necessary, it carried out cleaning work.
8. The Council sought legal advice and told Mr Q that, in its view, it was complying with its statutory duty under the EPA. Mr Q does not accept that annual litter picking is enough for the Council to meet its duties under the EPA. He said the Council had not cleaned the A34 this year.
9. In response to a draft of this decision, Mr Q said he cannot afford to go to court to get the Council to comply with its statutory duties.

Analysis

10. We will not investigate this complaint.
11. The Council believes it is complying with its statutory duty under the EPA to keep the A34 clear of litter. Mr Q disagrees, but says he cannot afford to go to court. It is not our role to say whether the Council’s annual maintenance is sufficient for it to comply with its EPA duties. That is a matter for the Magistrates’ Court to decide. The EPA enables the Court to order the Council to pay Mr Q’s costs. So, in my view, it would be reasonable for Mr Q to give notice to the Council and go to the Magistrates’ Court for an order if he believes it is not complying with its statutory duty.

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Final decision

12. We will not investigate this complaint. This is because Mr Q may go to court.

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Investigator's decision on behalf of the Ombudsman