Summary: Mr B says the Council has failed to require waste from a new development to be collected from the internal refuse area. It has, instead, required residents to leave bins for collection on a private road without permission. Mr B says the bins are unsightly and cause an obstruction. The Council was not at fault. It considered Mr B’s complaints thoroughly and made lawful decisions.

The complaint

1. The complainant, who I have referred to as Mr B, says the Council is at fault for:
1. Failing to require waste from a new development to be collected within the development. Instead, it requires residents to leave bins on a footpath owned by his neighbour. He says the bins are unsightly and obstruct pedestrians. He says the Council condones the residents’ illegal ‘fly-tipping’.
2. Failing to refer the matter to its legal department to explore the ‘fly-tipping’ matter;
3. Failing to carry out an assessment of the risk of placing the bins on the road;
4. Failing to respond adequately to his concerns about safety;
5. Refusing to meet him at the site to discuss his concerns;
6. A complaints officer putting the phone down on him during a discussion; and
7. The fact that the Council’s complaints department does not record phone calls.
2. Mr B says the Council should:
1. Require collection from the bin store within the development; and
2. Arrange for all complaints calls to be recorded.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I have considered Mr B’s complaint to us and his correspondence with the Council about the matter (provided by the Council). I have considered the notes and analysis of the case provided by colleagues at the Ombudsman.
7. I have also looked at the planning records for the development that are available on the Council website and have viewed the area using Google Maps.
8. We sent the draft decision to the Council and to Mr B for their comments. I considered Mr B’s comments and wrote a second draft decision which I sent to the Council and Mr B for their comments before making my final decision.

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What I found

Legal background - planning

9. Planning permission is required for the development of land (including its material change of use).
10. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
11. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.

Legal background – refuse

12. The Environmental Protection Act 1990 sets out councils’ duties about waste collection. s.45(1) says they must arrange for the collection of waste from households in their areas. S.46(1) says they may require householders to place waste in specified containers. S.46(4) says they may require householders to place their bins at a designated site for collection. S.46(5) says they must first ask the relevant highways authority for permission.

What happened

13. Mr B lives on a private road. The owner of a large house and grounds on the road applied for permission to convert the outbuildings into residential apartments. The plans included a bin store for residents’ use within the grounds.
14. Mr B lodged an objection. He said the entrance to the site was not wide enough for a bin lorry to pass through and this would cause traffic delays and safety hazards. Mr B also said the owner had not shown they had the right to place bins on third party property (the private road).
15. The Council allowed the application. A planning officer wrote a report setting out its reasons including a response to Mr B’s objections. It said there was enough space for bin storage within the development site but envisaged waste collections taking place on the street. The report said Mr B’s concern about bins being put on the private road was ‘a civil matter’.
16. Mr B says that, since the development’s completion, residents have left their bins on the private road each collection day. Mr B says this is unsightly and obstructs the narrow road.
17. Mr B complained to the Council. The Council did not accept it was at fault. It said:
• It asks all residents to place bins at the end of their driveways - on, or as close as possible to, the boundary line where the property meets the footpath.
• The issue of bins being left on a private highway for collection is a civil issue.
• The requirement for the provision of refuse storage was met as part of the planning application and the property has enough space to store the required number of bins after collection.
• The Council collects the bins from the private road because the refuse vehicle cannot access the site via the narrow entrance.
• An officer visited on a collection day and observed that all bins were promptly taken back into the site after collection.
• The officer took photographs which show that even when bins are on the footpath, the path is wide enough for pedestrian access.
18. Mr B was not satisfied with the Council’s response to his complaint, so he complained to us.

Analysis

Planning

19. When considering the application, the Council considered Mr B’s objections. Mr B says the original plans said the Council would collect rubbish inside the development. But Mr B said, when objecting to the planning application, that the gate shown on the plans was too narrow for a bin lorry to enter.
20. The planning officer’s report said there would be a roadside collection. The planning officer explained the siting of the bins for collection was a ‘civil matter’.
21. When making its decision, the Council could only consider material planning considerations. The question of land ownership is not a planning consideration. I cannot, therefore, found fault with the Council for not considering it.
22. Mr B says the Council should have carried out detailed calculations about the size of the bins to satisfy itself that they did not cause a health and safety hazard. There was no requirement for it to do so at the planning stage. If a health and safety hazard becomes apparent, the Council can take action but it has visited the site and does not accept that there is one.

Collections

23. The Environmental Protection Act says councils can ask people to leave their waste at a designated place for collection. It must first gain permission from the relevant highways authority. In this case, there is no relevant highways authority because it is a private road. The Council was, therefore, correct to say this was a civil law matter.
24. If the owner or owners of the affected stretch of road wish to bring a civil action against the residents, they can do so. This is not a matter for the Ombudsman.

Unsightly/safety risk

25. Once the Council began to collect bins from outside the development, Mr B raised his concern that they were blocking the pavement. He said the bins were unsightly and blocked the pavement so were a safety risk.
26. The Council responded. It explained that it had visited the site to inspect the arrangements in action. It said it was satisfied with the refuse collection arrangements. It said that the pavement was wide enough and was not blocked by the bins. It said the bins were returned to the property promptly.
27. This was a decision it was entitled to take on the evidence. I cannot find fault.

Fly-tipping

28. Mr B says the Council is, by allowing the bins to stand on the pavement, condoning an illegal activity; fly-tipping. On the GOV.uk website, the government says ‘fly tipping is illegal dumping of liquid or solid waste on land or in water. The waste is usually dumped to avoid disposal costs’. I have found, using this definition, that this is not fly-tipping. Waste is not dumped on the road outside the development. It is placed there to await collection by the Council which disposes of it elsewhere. I do not accept that this is fly-tipping and I do not find fault.
29. Mr B says the Council should have referred this matter to its legal department. However, there was no requirement for it to do so. I do not find fault.

Site meeting

30. Mr B says Council officers refused to visit the site to discuss his concerns. While this would have enabled Mr B to voice his concerns, there is no statutory requirement for the Council to have done so. The Council says he did not initially request a site meeting. I do not find fault.

Complaint handling

31. Mr B says the complaints department did not have the expertise required to deal with his complaints. The council explains that the complaints department consulted the planning department before responding. I do not find fault.
32. Mr B also says a Council officer in the complaints department put the phone down on him during a conversation. He also complains that the complaints department does not routinely record phone calls with members of the public.
33. The Council says the reason the officer in question put the phone down was that Mr B was rude. It has provided its contemporaneous note of the incident. As there are no recordings and two different accounts of events, I do not have sufficient evidence to say the Council was at fault.
34. While recording phone calls would provide greater transparency, councils are not obliged to do so. Therefore, I cannot find fault.

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Final decision

35. I do not find the Council at fault. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman