Summary: Mr B complained about problems with commercial bins near his property. We cannot find fault with the action the Council has taken.

The complaint

1. Mr B complains that Brighton and Hove Council (the Council) failed to take any action to stop local businesses storing their commercial waste bins outside the entrance to his property, causing obstruction and nuisance.

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The Ombudsman’s role and powers

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’. 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)
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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

5. Mr B lives in a block of flats in a central mixed-use location close to many shops and restaurants. There are limited areas to store bins, either residential or commercial. He has been complaining to the Council for several years, about problems with refuse bins outside the entrances to the flats: overflowing bins, rubbish in the street, restaurants refusing to store their commercial bins outside their premises and fly-tipping.
6. The Council says the problem has intensified more recently as an area of vacant land previously used for bin storage has now been closed for development. The Council is only responsible for the communal residential and recycling bins. The commercial bins are collected by private operators.
7. Prior to March 2019, the Council had no enforcement strategy to deal with commercial bins. Environmental enforcement matters were dealt with by its contractor, but the issue of enforcement on commercial bins on the highway was not part of its contract.
8. Mr B complained most recently in September 2018. In response the Council and the contractor visited the site. As a result, the Council arranged for its bins to be relocated to a different street.
9. The Council responded to the complaint in October 2018. It said that the Council did not have a licence scheme to regulate the use of trade bins but was going to explore the possibility further. Such a scheme would require approval by Council members. It said it would continue to monitor side waste and fly-tipping. In respect of highway obstruction, it said the location was not ideal and did restrict the footway, but it did not consider it amounted to a dangerous highway obstruction.
10. Later that month the Council informed Mr B it had a new head of service to implement a modernisation programme of the service. It said the contractor had spoken to one of the restaurants and agreed to increase the frequency of collections and warned it not to leave side waste. It also said the contractor inspected each of the businesses in the area and confirmed that there was nowhere else to store the bins, but they all had the correct amount of bins and frequent collections.
11. In March 2019 the Council took back control of the waste management service from the contractor. It also introduced an Environmental Enforcement Strategy covering industrial and commercial waste receptacle offences under section 47 of the Environmental Protection Act 1990 such as overflowing bins, side waste and bins blocking the highway and bins left on the pavement outside the agreed collection times. The strategy contains criteria for when action should be taken in respect of the first three issues.
12. The Council also started an options appraisal to consider how best to manage commercial bins in the city, including a possible licensing scheme. The appraisal aimed to weigh up the nuisance factor for residents against the economic impacts for small businesses.
13. As part of this strategy it is committed to educating businesses in the city about their waste management responsibilities. It sent a letter to all businesses in March 2019 explaining the new strategy and the ability of the Council to issue fixed penalty notices [FPNs] for offences in three areas:
• having a Duty of Care certificate;
• disposing of waste illegally; and
• offences related to how waste is stored, presented and disposed of.
14. It followed this up with visits to businesses in the area and advising residents and visitors about roles and responsibilities in respect fly-tipping and littering.
15. The Council says enforcement officers carry out daily inspections throughout the city and discuss waste storage with businesses. It says it has, since October 2018, issued two FPNs for residential fly-tipping and one for an industrial commercial waste receptacle offence. It says it has noted an improvement in recent months.
16. It also says that the officers carrying out daily inspections have noted a problem with residents leaving household waste items around the trade waste bins leaving significant amounts of side waste.
17. The Council’s Environment, Transport and Sustainability Committee will consider a report on 25 June 2019 seeking permission to consult on a scheme for managing commercial bins on the highway. It is also developing guidelines for the future placement of communal bins for household waste including an audit to ensure each area has sufficient bin capacity.
18. Mr B says the situation has not improved greatly. One of the restaurants refuses to store its bins outside its own premises but has objected to a communal recycling bin outside the restaurant by covering it in cardboard. He says this was still the case more than a week later. While he welcomes a visit by a senior officer to the community association, he is concerned about the time it is taking to develop improvements.

Analysis

19. I understand Mr B’s frustration with the bin issues he continues to experience. It is clearly a difficult issue to resolve given the physical constraints and mixed usage of the area. However not all of the problems are within the Council’s power to control.
20. The Council at present cannot insist a business places a commercial bin in a particular place. So I cannot criticise the Council for not ensuring all the restaurants place their bins away from the entrances to Mr B’s block of flats. It has taken steps to investigate the problem: managers have visited the site and relocated residential bins, officers inspect the area daily and have advised local businesses about their waste management responsibilities.
21. Since March 2019 it has a new strategy in place and the ability to issue fines for offences. It inspects the area daily and has taken up individual issues as necessary. It has also noted that not all the problems are due to local businesses but some arise from inconsiderate waste disposal and fly-tipping by residents. It has taken steps to advise and educate both residents and businesses. It has also taken the first steps to implementing a licensing scheme for commercial waste management. This inevitably takes time, but I cannot conclude the time taken to date is so excessive as to amount to fault causing injustice.
22. I hope the Council will continue to respond promptly to problems such as the blocking up of the recycling bin and move forward with the new scheme as soon as possible.

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Final decision

23. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.

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Investigator's decision on behalf of the Ombudsman