The investigation

The complaint

1. Mr K complained the Council has failed to remove a fly-tipped mattress from a river running through a council-owned park. He says this has had an impact on wildlife in the river.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

Councils’ duty to remove fly-tipping

3. The Government has published guidance setting out councils’ responsibilities to tackle fly-tipping. It says:

“Fly-tipping on land

You must remove and dispose of all fly-tipped waste if it’s on relevant land.”

4. And:

“Fly-tipping in water

You must remove and dispose of fly-tipped waste in water on council land.

…

The Environment Agency may remove waste, investigate or enforce when there is:

• significant flood risk on a main river or critical ordinary watercourse risk of pollution to controlled water.”

5. Separate guidance explains that ‘relevant land’ is land which is open to the air on at least one side, under the direct control of the council, and is accessible to the public, with or without payment.

6. The National Fly-Tipping Prevention Group (NFTPG), a multi-agency panel chaired by the Department for Environment, Food and Rural Affairs (Defra), has also released guidance for local authorities on dealing with incidents of fly-tipping. At page six, it says fly-tipping in water which presents:

• amenity issues only, in an ordinary watercourse or main river;

• a significant flood risk on an ordinary watercourse; or

• a risk of pollution to non-controlled water should be “[reported] to the local council to investigate, enforce and arrange for removal and disposal of the waste (by polluter, owner/occupier or local council)”.

7. The NFTPG guidance also says the Environment Agency “may” become involved in such situations, where it is a repeated occurrence, or where there is reason to believe it is the result of organised crime.

How we considered this complaint

8. We have produced this report following the examination of relevant files and documents.

What we found

9. In July 2023 Mr K reported to the Council that a mattress had been fly-tipped in a river running through a park in its area. The following month, he raised a formal complaint with the Council because it had not yet removed the mattress.

10. The Council responded a few days later to say the river fell under the responsibility of the Environment Agency, to which it said Mr K should refer the matter. Mr K replied that the Environment Agency’s website explained that, due to funding cuts, it could not respond to every incident reported to it.

11. Despite further correspondence from Mr K through September, the Council maintained its position that responsibility lay with the Environment Agency, and referred Mr K to us if he wanted to pursue his complaint further. Mr K then approached us in October.

Analysis

12. We have asked the Council to explain why it considered the Environment Agency was responsible for removing the mattress, in light of the Government guidance. It replied:

“The Council has a responsibility to remove flytips in water on council land. However, as the waterway in question is a statutory main river the Council does not consider that it meets the description of 'relevant land' which sets out where these responsibilities apply.”

13. The Council then commented further, saying:

“The [river] is classed as a Statutory River and is owned by the Environment Agency (EA) who have a responsibility for regulating water quality and managing the potential risk of flooding. Once an incident is reported the EA is responsible for assessing if any litter or debris within the watercourse would constitute a flood risk that would require removal by them. The EA has an annual maintenance programme to clear obstructions that might cause flood risk. If the items are not considered a flood risk the EA could ask the relevant riparian owner to consider actioning or assisting in the removal of reported items, but there is no specific duty for Borough Councils to clear litter from rivers. In this instance the matter was reported to the EA and there has not been any approach to [the Council], or a partner agency such as the [local river trust], to assist with removal of items.

“[The Council] does not agree that a statutory waterway under the ownership and management of the EA is "water on council land." [The Council] disputes the fact that it has a specific duty to remove waste from statutory waterways, but is committed to working with the EA and voluntary partners should requests be made to assist with clearance from statutory rivers.”

14. We acknowledge the guidance says councils are responsible for removing fly-tipped waste on ‘relevant land’ – but it only makes that qualification regarding waste deposited on land. For waste deposited in water on council land, the guidance makes no similar qualification; it says, unequivocally, that councils have a duty to remove the waste in these circumstances.

15. Nor do we share the Council’s view that, because the river is a statutory waterway, it therefore does not constitute water on council land at this location. At no point does the Government guidance suggest such a distinction should be drawn – it simply refers to “water on council land”. As the land in question is a council-owned park, we are satisfied that definition applies here.

16. The NFTPG guidance also reinforces that it is the Council’s duty to remove the mattress. The guidance says the Environment Agency has a power (rather than a duty) to remove fly-tipping which presents a significant flood risk on a main river. However, where it is only an amenity issue, the local council has a duty to arrange removal.

17. In this case, there is a single mattress in a river which, at this point, is a few centimetres deep. The Council has not suggested that it represents a significant flood risk. It is therefore solely an amenity issue, and so, according to the NFTPG, it is for the Council to deal with it.

18. For these reasons, we are satisfied the Council’s refusal to intervene is fault. This is because it has misapplied the Government guidance. As a result it has failed to recognise it has a duty to remove the mattress based on the facts of the case.

19. The injustice to Mr K from this fault is clearly limited because the mattress is in a public place and does not have a direct effect on him. However, we accept the Council’s refusal to accept its duty has caused Mr K some frustration, especially given how protracted this matter has become, with it now being approximately 10 months since he first reported it. For this reason, we consider the Council should write a formal letter of apology to Mr K, recognising its fault.

20. We also consider the Council should now act to remove the mattress, as is its duty; and that it should circulate guidance to all relevant officers, ensuring they understand the Council’s duties regarding fly-tipped waste.

Recommendations

21. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

22. And, within one month of the date of this report, the Council has agreed to:

• remove the fly-tipped waste from the river;

• circulate guidance to relevant staff, highlighting the Government guidance on this matter, and reminding them the Council has a duty to remove fly-tipped waste in water on its land; and

• write a formal letter of apology to Mr K, acknowledging it was at fault for not accepting its responsibility to remove the waste when he first reported it. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice, and the Council should consider this guidance when writing to Mr K.

Final decision

23. We have completed our investigation. There was fault by the Council which caused injustice to Mr K. The Council has agreed to take the action identified in paragraphs 21 and 22 to remedy that injustice.

Print this page