Durham County Council (19 005 765)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 14 Feb 2020

The Ombudsman's final decision:

Summary: The Ombudsman does not find fault with the way the Council responded to Mr B’s reports of fly tipping and littering on land near his home.

The complaint

  1. Mr B complains about the Council response to fly tipped waste and litter on land near his home. He says the Council have failed to address the issue and this has caused him an injustice because of the negative impact on the amenity of the area.

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The Ombudsman’s role and powers

  1. If we are satisfied with a council’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)
  2. 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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

  1. As part of my investigation I:
    • considered the information Mr B provided;
    • made enquiries with the Council and considered its response;
    • interviewed a council officer; and
    • reviewed relevant law, guidance and council policy.
  2. Mr B and the Council had the opportunity to comment on my draft decision and I carefully considered the responses.

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What I found

The Environmental Protection Act 1990

  1. Section 33 of the Act sets out the law around fly-tipping, or ‘depositing controlled waste’. A person who breaches section 33 is committing an offence and may be subject to a fine or a prison sentence.
  2. Councils have powers to take enforcement action against people they suspect of fly-tipping. As these are powers, rather than duties, it is for councils to decide what action, if any, to take.

What happened

  1. Mr B made approximately 30 reports of fly tipping/ littering to the Council between 2016 and 2019. All these reports relate to a lane and woodland area near to his home.
  2. In the same period the Council received four reports from other residents about the same area.
  3. Different parts of the area are owned by the Council, a private company and an individual.
  4. Mr B also made complaints to the Council in 2017 and 2019 about its response to his reports.
  5. In response to Mr B’s complaints the Council says it:
    • erected signage in the area;
    • arranged for neighbourhood wardens to monitor the area;
    • asked the landowner to remove waste;
    • carried out site visits in response to Mr B’s complaints; and
    • requested fence repairs with the private company.
  6. Mr B says the Council’s actions have not addressed the issue adequately and fly tipping/ littering remains an issue in this location. He complained to the Ombudsman in July 2019.
  7. In response to my enquiries the Council says:
    • ‘The challenge remains that this is a quiet rural lane of approximately 1.5 miles that is used by people with local knowledge as a “short cut” and also by, in Mr B’s own words, “irresponsible persons” who know that it is somewhere that they can fly-tip without being disturbed’.
    • ‘Information has been previously supplied to Mr B and his MP that the area is monitored and patrolled by the wardens there has been periodic CCTV operations & an increase in visible warning signs regarding fly tipping. We continue with our work to tackle fly tipping and this shows that it is reducing in Durham compared to the National picture’.


  1. Mr B says the Council failed to take appropriate action against the individual landowner. The Council has shared its records with me and I am satisfied with the action it took. We cannot share the records with Mr B because they contain third party data. I do not find fault with the way the Council dealt with his reports.
  2. Councils can consider whether to take steps to prevent fly-tipping happening. This is for councils to decide, and there is no statutory duty on them to act.
  3. However, I would expect a council to consider use of its powers when it becomes aware of a persistent fly-tipping issue. To fail to consider these powers or to explain its decision would be fault.
  4. In Mr B’s case, the Council acted on Mr B’s correspondence by clearing fly-tipping from the lane when he reported it. However, it appears that the issue kept re-occurring.
  5. The Council has set out what action it has taken in response to Mr B’s reports. It accepts there are ongoing incidents of fly tipping and littering in the lane but also outlines the challenges it faces to stop this completely.
  6. The decision about what action to take in response to Mr B’s complaint was for the Council to make. I can see the Council considered all the reports and concerns from Mr B and what action it could take to address the issues. It has explained its reasoning. I have found no fault with how the Council made its decision, so I cannot question the decision itself.

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Final decision

  1. I do not find fault with the way the Council responded to Mr B’s reports of fly tipping and littering near his home.

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Investigator's decision on behalf of the Ombudsman

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