Manchester City Council (20 014 474)

Category : Environment and regulation > Refuse and recycling

Decision : Not upheld

Decision date : 25 Jan 2022

The Ombudsman's final decision:

Summary: the Council was not at fault for how it maintained a pathway alongside Mr B’s property since putting a maintenance schedule in place in late 2020. It responded to reports of hazards and has provided evidence that the pathway is clear. It was also not at fault for deciding enforcement action against a third party – which owns a section of the pathway – was unnecessary. It has explained why it decided this, and its decision does not appear unreasonable.

The complaint

  1. The complainant, whom I refer to as Mr B, complains that he has been trying for over two years to get the pathway next to his property cleared of rubbish and maintained properly. The pathway is part-owned by the Council and partly by a third party – a charity which I refer to as ‘the Charity’.
  2. At the end of 2020, both the Council and the Charity told Mr B they had put maintenance schedules in place for the pathway. But Mr B says nothing has changed, the standard of maintenance on and next to the path is very poor, and there is still uncleared rubbish.
  3. Mr B wants more done to clear and maintain the pathway – including enforcement action by the Council against the Charity. He also wants action taken against people who fly tip rubbish on and next to the pathway.

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What I have investigated

  1. The Council resolved Mr B’s complaint in late 2020 by putting in place the maintenance schedule he had been asking for (and the Charity did the same). So I have only investigated Mr B’s complaint about matters since then.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

  1. I considered information from Mr B and the Council. Both parties 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

What should have happened?

The Environmental Protection Act 1990

  1. Landowners are responsible for clearing fly tipping from their own land. Councils have the discretion to investigate and clear fly tipping, but are under no duty to do so. If a council chooses to clear private land, it can charge the owner for the clearance.
  2. Councils can, under sections 59 and 59ZA of the Environmental Protection Act 1990, require owners of private land to clear fly tipping on their land, and can enforce this. This is a power, not a duty.

The maintenance schedules

  1. The Council agreed, in 2020, to clear its section of the path every fortnight.
  2. The Charity agreed to:
    • a fortnightly litter pick;
    • keep bushes to a reasonable height;
    • keep footpaths free of leaves (as much as can be reasonably expected in autumn);
    • ensure trees are not dangerous or causing an obstruction; and
    • deal with fly-tipping.

What happened?

  1. Since the start of 2021 – after both the Council and the Charity agreed their maintenance schedules of the path – Mr B has only complained about the state of the path once, in March. He told the Council that the path was covered with hazardous leaves. The Council asked its contractor to clear the leaves, and Mr B raised no further concerns about it.
  2. In September the Council visited the site to identify the location of ‘no tipping’ signs. Mr B met with the officer on the day of the visit.
  3. In October, in response to my enquiries, the Council visited the site and took photographs which showed that the path was completely clear.
  4. The Council says it has had no reason to consider enforcement action against the Charity. Any previous problems with the Charity’s section of the path have been resolved through communication.

My findings

  1. Although I am aware that Mr B spent a long time prior to 2021 chasing the Council about the state of the path, this was resolved before he approached the Ombudsman. His complaint when he came to us (in March 2021) was that the long-term problems were continuing.
  2. Although it appears there was a problem with the path in March 2021, this was quickly resolved by the Council, and the lack of complaints from Mr B to the Council about this matter since suggests that the maintenance of the path is satisfactory. The Council has taken a photograph of the site which supports this conclusion.
  3. I have also seen no evidence to suggest that the Council should have considered enforcement action against the Charity for a failure to maintain the path.
  4. Despite the maintenance schedule put in place by both the Council and the Charity, there may well continue to be occasions when fly-tipping takes place on the path, or when a hazard occurs. This does not mean that the Council is at fault, or that the maintenance schedule is inadequate.
  5. If the path does need clearing in between maintenance visits, Mr B should continue to tell the Council about it so it can respond. If, in future, the Council fails to clear hazards or waste from the path after Mr B has reported them, he can approach this as a new complaint.
  6. However, I have found no fault with how the Council has maintained the pathway since putting the maintenance schedule in place in late 2020.

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Final decision

  1. The Council was not at fault for how it maintained a pathway alongside Mr B’s property. It was also not at fault for deciding enforcement action against the Charity was unnecessary.

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Investigator's decision on behalf of the Ombudsman

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