Summary: There is no worthwhile outcome achievable and so investigation of this complaint is discontinued. The Council is considering how to resolve a complex legal and planning dispute over collection of refuse. Mr X has the option of private legal action if he wishes to pursue complaints about trespass but it is not in the public interest for the Ombudsman to investigate further.

The complaint

1. The complainant, who I shall call Mr X, has complained the Council has not stopped trespassing on land without permission when emptying bins from a neighbouring property.
2. Mr X says neither the council or neighbour have a legal right to enter the private property.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I read the papers put in by Mr X and discussed the complaint with him.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Mr X is a director of a company that owns a block of flats and its service road. He also lives in one of the flats.
9. The service road has a gate and has entry by a key fob. The Council has a key fob, so the bin lorry can enter and empty the 12 bins from Mr X’s block of flats, along with bins from other properties.
10. Another block of flats owns a piece of land, which is unfenced next to Mr X’s service road. They store their 3 bins there and the Council empties them as well, using the service road.
11. Mr X has said the Council has not got permission to use their service road to empty the neighbours 3 bins and is trespassing.
12. The Council has said the claim of the Council trespass is a complex matter and the refuse team are liaising with the legal department to ensure it responds property. The Council has said it has not stopped collections as it currently has no other alternative options to make collections. It has said it does not believe the option of residents leaving waste on the street is safe as it is on a busy junction and could put staff and residents at risk.
13. Mr X said the planning permission for the flats next door means they should not be let out without a valid waste strategy in place. The Council says that developer put in a retrospective planning application to regularize the use of the site, which the Council refused in February 2021 partly because of inadequate waste collection arrangements.
14. I can see from the Council’s website that in March 2021 the developer put in a waste management plan, so that a waste management condition on a previously valid planning consent could be discharged. The Council has not yet decided this application. The developer of the neighbouring flats says in the application that the building maintenance person will wheel the bins onto the main road so that they can be collected from the street rather than the service road.
15. I have looked at all the information and do not believe that the Ombudsman can achieve a worthwhile outcome for Mr X. The issue Mr X complains about is a complex legal matter which the Council is looking to resolve but I do not consider that we can put a timescale on this. If Mr X wants to stop the trespass then he can take legal action but I don’t think its in the public interest for the Ombudsman to puruse this for two reasons. Firstly, the Council needs to ensure, for public health reasons, that refuse is collected in a safe matter and that its staff are safe. Secondly, there is also an outstanding planning application to regularise the use of the site and until this is decided we would not investigate .

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Final decision

16. I have stopped investigating this complaint and do not uphold Mr X's complaint. No further investigation is needed as it is clear that the Ombudsman cannot achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman