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Royal Borough of Kingston upon Thames (20 007 313)

Category : Environment and regulation > Pollution

Decision : Upheld

Decision date : 09 Jun 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council missed refuse collections from a site it owns resulting in rats at her property. The Council was at fault for failing to investigate or respond to Mrs X’s allegations about the matter. It has agreed to apologise for the avoidable frustration that caused her and contact Mrs X to see if there is still an issue with rats at her property.

The complaint

  1. Mrs X complains about the way the Council has managed a site it owns adjacent to her property. Mrs X says :
    • The Council has failed to comply with the planning approval for a temporary building on the site.
    • The Council allows its contractor to store hazardous waste on the site.
    • The Council allows noise and pollution from vehicles using the site.
    • The Council allows refuse bins from the site which has commercial and housing use to be placed next to the boundary walls of her property.
    • The Council has failed to regularly collect refuse from the site when access to the bins has been blocked by parked vehicles creating a problem with rats on her property.
  2. Mrs X says the matter has caused her distress and concerns about the health and safety of her family. Mrs X wants the bins moved away from the boundary of her property.

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What I have investigated

  1. We have investigated Mrs X’s complaint the Council failed to comply with the planning approval for the temporary building as a separate complaint. This also included her concerns about waste storage at the site. So, I am not investigated Mrs X’s concerns about these matters. I have referred to those issues in the decision statement to provide background and context to Mrs X’s complaint I have investigated. This is Mrs X’s complaint about missed refuse collections from the site and her concerns about rats at her property. The final section of my statement explains why I am not considering Mrs X’s complaints about noise and pollution from the site.

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The Ombudsman’s role and powers

  1. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. 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)

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How I considered this complaint

  1. I have read the papers submitted by Mrs X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
  2. Mrs 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

The Councils Environmental Health Enforcement policy

  1. The Council’s Environmental Regulatory Services Enforcement Policy 2017 explains the enforcement action its Environmental Health service will take. It says will carry out fair, proportionate, and effective enforcement to protect the health, safety and economic interests of all concerned. It has a range of tools available but will be proportionate to the nature of the offence and/or the harm caused. This includes issuing a statutory notice, such as an abatement notice to require a person to ameliorate or stop nuisances being caused by their actions. But the Council must be satisfied there is enough evidence to take such action.

The Council’s policy for dealing with complaints about rats

  1. The Council has no documented policy for dealing with complaints about rats. But says it will investigate in line with its statutory duties under the Prevention of Damage by Pests Act 1949 or the Environmental Protection Act 1990 depending on the situation. The Prevention of Damage by Pests Act 1949 gives a council specific legal powers to take steps to ensure its area is free from rats or mice. The Council must take action to destroy rats and mice on its own land and can serve a notice on an owner or an occupier ordering work to get rid of the problems.

Section 82 notice

  1. Section 82 of the Environmental Protection Act 1990 allows a magistrate’s court to act on a complaint made by a person on the grounds they are aggrieved by a statutory nuisance. Nuisances may include noise, fumes, dust smells and smoke.

Events leading to the complaint

  1. The Council has used a site next to Mrs X’s property for over 10 years which includes a service yard and car park. There is a main office building for Council staff and a partner contractor. The main office building has residential accommodation above it owned and managed by the Council. The Council added a temporary office building over 10 years ago.
  2. Mrs X and her family moved into their house a few years ago. In February 2020 Mrs X complained to Council’s Environmental Heath service about the temporary office building causing her a nuisance as it was close to the boundary of her property. Mrs X referred to issues with rats and waste management as the Council’s contractor was storing waste on the site. Mrs X said she had rats at her property and complained about pollution from vehicles, noise, and artificial light disturbance. Mrs X asked the Council to serve abatement notices to stop the issues.
  3. An Environmental Health officer told Mrs X its Housing Services ran the temporary building and site so should contact that service about her concerns. The officer explained the Council could not serve an abatement notice on itself. So, advised Mrs X to make a formal complaint about the matter. And to pursue a section 82 notice through the magistrate’s court if she considered she had enough evidence to prove a statutory nuisance by the Council.
  4. Mrs X formally complained to the Council in May 2020 about planning issues on the site. In addition, she referred to nuisance at the site from rats/waste management, pollution, noise, and artificial light disturbance. Mrs X gave a pollution reading from a monitor she had taken from inside her home after vehicles were left idling in the service yard.
  5. A few weeks later Mrs X chased for a response and advised she intended to serve a section 82 notice on the Council.
  6. In June 2020, the Council responded to Mrs X’s complaint at stage 1 of its complaint procedure. It explained the planning situation on the site. The Council agreed to remind staff and contractors to park vehicles front end in against her boundary wall and not to leave engines idling in the car park. The Council said it would write to residents who lived in the properties above the offices as they also used the site car park.
  7. Mrs X asked to go to stage 2 of the Council’s complaints procedure as she remained unhappy with its response. Mrs X said she was waiting for the Council to send the names of managers in the temporary building so she could serve the section 82 notice. Mrs X also referred to issues with noise, fumes, vehicles in the car park blocking bin collections resulting poor waste management and rats. Mrs X did not consider the stage 1 investigation thorough or fully address her complaints as it did not cover some points. Mrs X asked the Council to act on several issues including poor waste management and rats. Mrs X considered the car park harmful to her health and caused a nuisance from noise, pollution, and fumes. Mrs X said she would take action under section 82 if the Council did not act.
  8. An Environmental Health officer responded to Mrs X’s concerns advising he did not have the names of managers in the temporary building. The officer explained the air quality officer advised the Council could not accept the monitoring data she provided. The officer accepted the monitor gave a high reading, but the Council based all health-based objectives for air quality ‘on the mean concentration over time of a given pollutant ‘. The officer explained he did not recognise the make and model of monitor used by Mrs X. The officer said it was a low-cost monitor, ‘notoriously inaccurate’ and did not recommended using it. The officer confirmed they had advised Mrs X of the options available for monitoring air quality at her property. But regardless of levels of pollution at the property the Council would be unable to act on a statutory nuisance as explained previously.
  9. The Council formally responded to Mrs X stage 2 complaint in July 2020 and apologised she had found it necessary to contact it with the issues. The Council referred to her concerns with the planning aspect of the temporary building. The Council accepted it had not responded to her concerns about issuing abatement notices, requests for names of managers which it provided and upheld that part of her complaint.
  10. The Council stated that if pollution levels were high its duty was to serve an abatement notice on the owner or person responsible if satisfied that a statutory nuisance was occurring or likely to reoccur. As Mrs X had been advised before the Council cannot take legal action against itself so should take her own action under section 82. The Council confirmed the advice given about her monitor readings and why it could not accept them. So did not uphold this part of her complaint.
  11. Mrs X has not provided any information to show she has complained to the Council again about any missed refuse collections or problems with rats at her property after July 2020.

The Council’s response to complaint

  1. The Council says it has no complaints logged specifically about bin placement or failure to collect rubbish leading to a rat infestation from Mrs X through the complaints team. It also says Mrs X has not made a direct approach to Environmental Health about the matter.
  2. It confirms Environmental Health has no record of any contact with Mrs X about any waste or rat complaint from the site. The Council reports waste management received a complaint from Mrs X in September 2019 that it missed collecting communal recycling bins twice, and she had rats in her garden as a result. The Council says its records show the complaint was ‘assigned’ but has no note on what action was taken.
  3. The Council says it has not been made aware of any recent issues of recurring missed recycling collections from the site. It confirms it logged issues there in 2018 and 2019 which it dealt with by meeting with its waste contractor, the waste team and housing services. This resolved matters and Environmental Health set up monthly meetings with housing services. This enabled it to pick up issues as they arose and deal with them as soon as possible.
  4. The Council reports no issues raised from Mrs X or residents about recycling collection from the recycling location by Mrs X’s property at the monthly meetings. The Council says where there are repeat issues with missed collections at a property it is picked up by the Environment contract team and logged on a tracker. This is checked and monitored by the Council and its waste contractor. It confirms there have been no issues about the site picked up through this tracker either.
  5. The Council says it is only responsible for domestic waste collections from the site and not the commercial ones. The Council carries out a weekly collection of food waste and empties other recycling bins every other week. When it is made aware of repeat missed collections, the procedure is for one of the managers at the waste contractor to monitor collections until the service reliability improves. This can take between one to three weeks. The Council says it has not received any complaints or requests from Mrs X to relocate the recycling bins away from her property.

My findings

  1. The Council says it has one recorded complaint to waste management in September 2019 from Mrs X about a missed recycling collection and rats at her property. But it has not recorded what action was taken either about the missed collection or the issue with rats at Mrs X’s property. The failure to record the outcome is fault by the Council as it should ensure it keeps good records of any complaint it receives, and the action taken, if any, in response. I recommend the Council reminds officers to ensure all the outcomes of reports of missed collections and any issues arising as a result are logged and if action is taken then it is recorded.
  2. While there is fault by the Council, I do not consider it has caused a sufficient injustice to Mrs X for me to pursue the issue of missed collections further now. This is because there was only one report of missed collections. According to the Council’s policy this would not warrant further action as it carries out monitoring when there has been repeated missed collections. It has also not been raised at the monthly meetings set up between the Council and its waste contractor to indicate an issue with the site. With regards to the complaints about rats I would expect Mrs X to have pursued the issue of rats further with the Council in 2019 if she considered it a significant problem. I have seen no evidence that Mrs X raised the issue of rats again with the Council until February 2020.
  3. The Council says Mrs X has not complained directly to Environmental Health about missed refuse collections or rats on the site. But the evidence provided shows Mrs X did raise concerns with Environmental Health about missed collections causing her problems with rats in February 2020. Mrs X also referred to concerns about missed collections and rats in her formal complaints in June and July 2020. There is no evidence the Council has investigated her allegations about the missed collections and rats or provided her with a written response about these complaints. On the evidence I have seen this is fault by the Council. It has caused Mrs X avoidable frustration in having to pursue her concerns from February 2020 further.
  4. However, as there is no evidence Mrs X has pursued any further complaints about rats at her property, I consider it limits the injustice caused to her. This is because it there is nothing to suggest it is still an ongoing issue for her. Because of this I recommend the Council apologises to Mrs X for failing to consider her complaints as a suitable remedy for the injustice caused. The Council should then contact her to see if there is still an issue with rats at her property. If so, then the Council should consider actions under the powers specified in the relevant legislation which requires councils to act to destroy rats and mice on its land. I also recommend the Council reminds officers to ensure they fully investigate all aspects of complaints made through its complaint procedure.
  5. The evidence I have seen shows there have been no further reports of missed refuse collections from the site. It has also not been shown to be an issue in the regular meetings with the waste contractor. Mrs X will need to report any further missed collections to the Council.
  6. The Council says Mrs X has not raised any concerns directly with it about placing the bins near to her property. I have found no evidence to show Mrs X has raised the matter either. If it remains an issue for Mrs X, she will need to raise it directly with the Council so it can consider her concerns.

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Agreed action

  1. Within one month of the date of my final decision the Council has agreed to:
    • Apologise to Mrs X for failing to investigate her complaints about missed refuse collection from the site causing rats at her property.
    • Contact Mrs X to see if there is still an issue with rats at her property and if so, consider what action it can take to resolve the matter.
    • Remind officers to ensure all reports of missed collections made are logged and the outcomes are recorded.
    • Remind officers to ensure they fully investigate all aspects of complaints made through its complaint procedure.

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Final decision

  1. The Council did not investigate Mrs X’s complaints about missed refuse collections resulting in rats at her property. This was fault and caused avoidable frustration. The Council has agreed to my recommendations therefore I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs X’s complaints about noise and pollution from the site. This is because Mrs X has an alternative remedy available to her as she can serve a Section 82 notice against the Council. This can be considered by the courts. I consider it is reasonable to expect Mrs X to serve such a notice as the courts can decide whether the Council is causing a statutory nuisance and order it to act.

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Investigator's decision on behalf of the Ombudsman

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