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Hertsmere Borough Council (18 011 788)

Category : Environment and regulation > Refuse and recycling

Decision : Upheld

Decision date : 25 Mar 2019

The Ombudsman's final decision:

Summary: Mrs X complains the Council has failed to collect refuse from a new housing development. The Council proposed an alternative refuse collection site and satisfied itself, based on the circumstances of the development this alternative was suitable. There was therefore no fault in how it made this decision. The Council failed to respond to Mrs X’s complaint about this and has agreed to apologise to her and update her on its ongoing work to consider collection arrangements.

The complaint

  1. Mrs X complains the Council has failed to collect refuse from a new housing development since it was built in 2017. Because of this she says residents are having to pay for private contractors to collect their refuse. She complained in July 2018 but says the Council did not respond to her complaint.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 spoke to Mrs X about her complaint and considered correspondence she provided.
  2. I asked the Council questions about the complaint and considered correspondence and policies it provided.
  3. I have written to Mrs X and the Council with my draft decision and given them an opportunity to comment. I will consider any comments before making my final decision.
  4. I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered Mrs X’s comments before making my final decision.

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What I found

  1. The Environmental Protection Act 1990 says councils must arrange for the collection of household waste from domestic premises. Councils can refuse to collect waste where it is situated in a place which, in their opinion is so isolated or inaccessible that the cost of collecting it would be unreasonably high.

Planning background to the complaint

  1. I have not investigated any of the Council’s actions concerning the grant of planning permission, attachment of conditions and enforcement decisions concerning the development about which Mrs X raises her complaint. This is because the Ombudsman will not normally investigate complaints about matters that happened more than 12 months before the person complained to the Council about them.
  2. The following narrative is therefore included to explain the context for the complaint.
  3. In 2014 the developer of the housing development about which this complaint concerns submitted a planning application for mixed retail and residential use. The application form said that plans for waste collection had been agreed with council’s waste service.
  4. A transport statement submitted with the planning application referred to plans to enable refuse collection from the kerbside. The application included a design and access statement showing construction of a bin store located against the ground floor of the development adjacent to a car park access ramp. I refer to this as the ‘south bay’.
  5. The transport statement said there would be two loading and serving bays. This would be:
    • An existing northern bay
    • Construction of a “new southern loading bay that would be provided as part of the permitted redevelopment of [the] site”.

The statement said these measures would allow refuse collection from the kerbside.

  1. The planning officer’s report referred to no objection to the development from waste management services subject to construction, as part of the development, of acceptable loading bays for refuse collection.
  2. The Council considered the proposed measures to allow for waste collection were acceptable and in accordance with relevant policies.
  3. The Council granted planning permission for the development conditional on it being carried out in accordance with approved plans, including the design and access statement referring to the bin store.

Consideration of adequacy of refuse collection.

  1. By 2017 a new company had taken over responsibility for finalising development. This is the company on whose behalf Mrs X brings her complaint. The development was, by now, nearing completion. Solicitors acting for the company contacted the Council about the collection of refuse as they understood the Council had not agreed collection arrangements. Residents were about to move in. It understood the developer’s preferred ‘north bay’ location for refuse collection had been rejected as unsuitable by the Council.
  2. The Council replied to say it accepted it had a duty to arrange collection of household waste from the development. It said the north bay was not suitable for refuse collection. Collection from the south bay was not possible because works had not been carried out. The Council identified an alternative location for collection. It said the company would need to ensure bins were taken to and from this location.
  3. The solicitors replied to say the identified site was not suitable as it was in third party ownership. The Council proposed an alternative location on land it owned. The solicitors said this was also unsuitable because it was near a busy site and impractically far from the development.
  4. The Council replied to confirm its view that the ‘north bay’ site was unacceptably risky for refuse collection. It had proposed two alternatives, both of which had been rejected by the management company. It did not agree its second proposed site was impractical or unsafe. It said although it might be an inconvenient location for residents, it was not impractical or safe. It had satisfied its duty to collect waste from the household free of charge by making this offer.
  5. Correspondence between the Council and solicitors continued. The Council maintained its view that its second proposed collection location was appropriate. It did so having considered the distance from the development to its suggested location. The solicitors said the management company expected the Council to pay for the private collection service it had to put in place for collection of waste.
  6. The Council considered the specific circumstances of its second proposed collection point. It said it did not accept it was impractical or unsafe.
  7. In May 2018 Mrs X contacted the Council about the problem. The Council said that the existing loading bay was unsuitable and that the planning department was addressing the situation.

Mrs X’s complaint

  1. In July 2018 Mrs X complained to the Council about its failure to collect refuse from the flats. She said the company had been told that the north loading bay would be appropriate. The Council had decided this was unsuitable for refuse collection. The Council had not replied to her requests for information about where it would collect from.
  2. Mrs X continued to ask the Council to respond without success. She then complained to the Ombudsman in November. The Council told us her complaint had not completed the Council’s complaint procedure. After giving the Council the chance to respond, and without evidence it had done so we decided to investigate the Council’s actions. It later apologised to us for delay in dealing with the complaint.
  3. In response to my enquiries the Council said it had offered a reasonable alternative location for collection that had been rejected by the developer. It would continue to work with interested parties. It was seeking legal advice concerning the developer’s request for it to pay the cost of private collection.

My findings

  1. It was not the Council’s responsibility to carry out works on the loading bay to make it suitable for refuse collection.
  2. When the Council was alerted to imminent occupation of the development without a suitable refuse collection location in place it suggested two alternatives. It was entitled to decide the north bay was an unsuitable collection location. The Council had not previously led Mrs X to believe the north site would be suitable.
  3. The Council considered the developer’s objection to its second suggested collection location. It considered information provided by Mrs X’s company and solicitors about the difficulties experienced by residents. It had regard to relevant information about this, including its distance from the development, the location of other road users and the type of pavements and therefore safety of transport. It decided the collection location was suitable, having considered the circumstances and developer’s objection.
  4. This was a decision the Council was entitled to make, having had regard to the circumstances of the development. It was made without fault.
  5. The Council did not respond to Mrs X’s July 2018 complaint. It did not respond to our requests for updates about this. This was fault. it caused Mrs X confusion and uncertainty. It apologised to us and should also apologise to Mrs X. This would provide an opportunity for it to update her on its ongoing work with other interested parties concerning arrangements for collection.

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Agreed action

  1. Within one month of our final decision the Council has agreed to:
    • Apologise to Mrs X for not responding to her complaint,
    • Update her on its ongoing work concerning arrangements for collection.

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Final decision

  1. I have completed my investigation. There was no fault in the Council’s decision regarding waste collection. There was fault in its complaint handling. The Council has agreed to take appropriate actions to remedy injustice caused by this.

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Investigator's decision on behalf of the Ombudsman

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