Summary: Mr X complained the Council failed to take appropriate action to deal with incidents of fly tipping and overflowing commercial and communal bins on the street where he owns a restaurant. There was no fault in the Council’s actions.

The complaint

1. Mr X complains the Council failed to take adequate action in relation to fly tipping and rubbish from a council communal bin, local flats and a neighbouring restaurant. He says there has been as much as 30 bags of rubbish dumped alongside already overflowing communal bins. He complained this is blocking the pathway to his business which he has to clear every day.
2. Mr X said his business is being affected as people assume it is his rubbish and do not want to visit his restaurant. He says he has to remove the rubbish himself.
3. He wants the Council to introduce a one way system, widen the street and set up a bin store.

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The Ombudsman’s role and powers

4. 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)
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 considered Mr X’s view of his complaint.
7. I made enquiries of the Council and considered the information it provided.
8. I considered the Environment Protection Act 1990.
9. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Environmental Protection Act 1990

10. 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 obtaining CCTV footage.
11. 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.

Council policy on communal bins for flats

12. The Council states it does not have a formal policy for the number of communal bins for flats. However, it usually allows around 90 litres capacity per flat.

What happened

13. Mr X owns a restaurant on a small street which consists of take-aways and other small businesses. The street also has four flats in the immediate vicinity of Mr X’s restaurant which are situated above the businesses on the street. Part of the street is owned by the Council. Other parts are unadopted which means the Council does not own them.
14. From January 2019 to August 2020, Mr X has reported around 35 incidents of abandoned vehicles, fly tipping and overflowing trade and communal bins on the street and in particular, outside his restaurant.
15. Council records show the Council has taken action to remove the rubbish, usually within two days of the report and often on the same day. Officers also regularly visited the street and would sift through the fly tipped rubbish to try to identify where it had come from.
16. On 3 December 2019, Mr X made a Stage 1 complaint. An officer from Environmental Services (Officer A) responded on 9 December. They said:
• the flats had access to a communal bin;
• residents living in the vicinity of Mr X's restaurant had been sent letters in May 2019, to advise them of the correct way to dispose of the domestic refuse/recycling and/or bulk waste items, to help prevent the problems highlighted by Mr X;
• when the Council received reports from Mr X, it quickly attended and cleared the area;
• the Enforcement Officer in Environmental Services had confirmed domestic waste was rarely found and if any evidence was found to identify the culprits, the Council would take action; and
• the Council would again issue letters to residents and businesses in the area.
17. Environmental Services officers met Mr X on site on 10 December 2019. Mr X wanted a one-way system introducing, the road widening and a bin store erecting. One of the Environmental Services officers carried out a further site visit shortly afterwards and considered the introduction of a one-way system and bin store would resolve Mr X’s issues.
18. The officer contacted Highways with the proposal to introduce a one-way system. On 19 December 2019, a Council Principal Engineer with the Traffic and Parking Section responded and said the suggestion to make the street into a one-way system had been made a number of times in the past and was not a viable solution to the issues. The Engineer provided numerous reasons for this decision including the fact the Police had refused to support it in the past because it would be difficult to enforce, it would likely lead to higher speeds along the street and part of the one-way system would be on unadopted land and so could not be enforced.
19. Mr X remained unhappy and asked the Council to consider his complaint at stage 2 of its complaints procedure. The Council responded on 23 January 2020 and said it had properly investigated at stage 1 and a further investigation would be unlikely to achieve anything further. The Council directed Mr X to the Ombudsman. Mr X complained to us.
20. As part of my enquiries the Council said it was currently considering a bin store, but that might mean pedestrians had to walk in the road. It said most of the excess waste was domestic and came from the flats. It had previously moved the communal bin away from the street in an attempt to alleviate the problem and had written to residents about the new collection point. However, residents carried on leaving their waste at the old collection point, which was nearer as they were not prepared to carry the bags to the new location. As a result, the Council had moved the bin back to its former location.
21. The Council also said it had successfully served a notice on one business owner for not having enough bin capacity to meet the needs of the business.
22. In response to my enquiries, the Council said it provided the four flats in the immediate vicinity of Mr X’s business with a 1000 litre general waste communal bin. It said this provided around three times more capacity than the usual 90 litres it allowed for each flat. Refuse was collected weekly and recycling fortnightly.
23. The Council said the only location for an additional communal bin would be on the corner of the street but Mr X had complained about the number of bins on the corner in the past.

My findings

24. Mr X is understandably concerned about the fly-tipping. He has drawn the Council’s attention to the problem. It has responded and acted appropriately in line with the law and its powers and duties. It has removed waste promptly and reminded residents of their general obligations. It has sufficient capacity to handle the waste of the flats in the local vicinity. It has carried out visits to the street and made appropriate attempts to identify who is fly tipping. It has considered Mr X's views and pursued the option of introducing a one-way system, albeit unsuccessfully. The Council continues to keep the situation under review and to respond to Mr X's calls. The Council is not at fault.

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Final decision

25. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman