Summary: Mr X complains the Council has allowed rubbish and fly-tipping in a pathway near his property. He says this has caused him and other residents distress and blocks their access. He also complains about the location of a household waste collection point. We did not investigate his complaint about the collection point’s location as we have already investigated this and it is out of time. There is no fault in how the Council has investigated and responded to reports of fly-tipping.

The complaint

1. Mr X complains the Council has allowed rubbish and fly-tipping to block his access to a garage and allotment causing distress to him and other residents. He says the Council’s household waste collection point is not lawful. He wants it to stop the deposit of waste there and prevent fly-tipping.

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The Ombudsman’s role and powers

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. 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)
4. 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

5. I considered Mr X’s complaint and evidence he provided. I tried to contact Mr X to discuss his complaint.
6. I considered reports provided by the Council about its actions.
7. I considered the Environmental Protection Act 1990.
8. I gave the Council and Mr X the opportunity to comment on my draft decision. I considered Mr X’s comments before making a final decision.

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What I found

9. The Environmental Protection Act 1990 says councils must arrange for the collection of household waste. They can choose what places they require households to place household waste for collection. They do not have to consult with residents about this.
10. Four years ago the Council started collecting household refuse from a location on a track near Mr X’s garage and allotment. The Ombudsman investigated a complaint about this, issuing a final decision in 2016. We found the Council had not properly considered alternative suggestions for its location that Mr X made. Before making our final decision, the Council did consider Mr X’s suggestions. It agreed to review how the collection location was working for six weeks after our decision. We did not find any other fault in how the Council chose the location.
11. Mr X made this latest complaint to the Ombudsman in 2019. The complaint concerned recent fly-tipping but also referred to his concern that the household waste collection location was unlawful. We cannot normally investigate complaints about actions where the complainant has taken more than 12 months to complain to us about a council’s actions. We investigated this matter in 2016 as explained above. Therefore I did not exercise discretion to consider that part of Mr X’s complaint concerning a decision made several years ago about the location of the waste collection point.

Fly tipping

12. The Environmental Protection Act 1990 gives councils powers to require occupiers and landowners to remove waste unlawfully deposited on land (called ‘fly tipping’). Councils can investigate allegations of fly-tipping in various ways such as taking witness statements, visiting the location and voluntarily obtaining CCTV footage.
13. Depending on what the evidence shows, councils can decide to remove the fly-tipped waste themselves or can issue formal notices requiring the person responsible to remove the waste. If the person refuses to remove the waste, the council can consider taking further legal action. Councils should also consider taking action to prevent reoccurrence of problematic fly-tipping.

What happened

14. Mr X contacted the Council in October 2018 concerned about rubbish left on land blocking access to his garage, allotment and use of a pathway. The Council visited and photographed a considerable amount of fly-tipped waste blocking the path. It removed the waste later in October.
15. The Council had further reports of fly-tipping in November. It removed the waste again. It visited again two times in December and noted and then removed further fly-tipping twice during that month. It responded to a further report in
    January 2019, again removing the waste.
16. By then Mr X had made a formal complaint to the Council about its failure to solve the problem. The Council replied in January 2019 explaining it had investigated and removed waste. It said it was considering enforcement action. It said it would continue to monitor the situation and clear any fly-tipped waste. It wrote to people living in the area, reminding them of the law and their obligations not to fly-tip.
17. Later in January the Council responded to further reports of furniture and waste on the land. It considered taking enforcement action but decided it did not have enough evidence about who was responsible. It wrote a warning letter to an address it had concerns about, giving them five days to remove the waste and dispose of it. When it revisited in early February the fly-tipping had gone.
18. Later in February the Council was alerted to rubble deposited at the site. Officers visited and found this was because of ongoing works and would be removed when this was complete. It was not causing access problems. It visited later in March and found the rubble had gone.
19. Mr X had, by now, asked for the Council to consider his complaint at stage 2. It replied in April. It explained that there was no evidence of a link between the fly-tipping and the location of the household waste collection point he had complained about earlier. It explained what it was doing to investigate and deal with the fly-tipping problems.
20. In April the Council had reports of further fly-tipping. It sent a warning letter to an address it had concerns about (and to its landlord). This included issuing a notice under powers in the Environmental Protection Act 1990. It visited later in April and found the waste was still there though not causing an obstruction. The Council had further reports of fly-tipping during April. It visited and witnessed the problem during April and May 2019.
21. The Council spoke with the resident it had concerns about, again advising them of their duty to remove waste. It advised of the potential legal consequences if they did not remove the waste. The Council had further reports of the problem during the rest of May. It visited the site and wrote to another property it had reason to be concerned about, giving them a deadline to remove the fly-tipping.
22. The Council revisited in June and found the waste had been removed and the land was now clear of waste. The Council says it has had no further reports of fly-tipping since the end of May 2019.
23. Mr X, responding to my draft decision said the Council had taken too long to remove fly tipped rubbish and that the location of the bin collection point is not legal. I have explained in paragraph 11 above why I have not investigated the location of the collection point.

My findings

24. The Council has responded appropriately to reports of fly-tipping. It has removed waste and reminded residents of their general obligations. It has gathered evidence about who is responsible by taking photographs and by asking for witness statements from residents. Mr X says it has taken too long to remove rubbish collected. It did not avoidably delay this. It responded appropriately, making enquiries about the source of the fly-tipping.
25. The Council has, based on its investigations, written to addresses it had particular concerns about. It has explained what households are responsible for, and what the Council’s powers are to take further action. It has considered exercising those powers but decided, because waste has eventually been removed, not to do so. This option though remains open should problems resume.
26. Mr X is understandably concerned about the fly-tipping. He has drawn the Council’s attention to the problem and it has responded having appropriate regard to its powers and duties. Therefore although Mr X wants a permanent resolution of the problem, there is no evidence of fault in how the Council has responded.
27. Mr X says he has stopped reporting problems as the Council has refused to take action. The Council continues to keep the situation under review and has said it will respond to further reports, considering whether they meet the threshold for formal action.

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Final decision

28. I have finished my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman