Summary: Mrs X complains that the Council failed to take sufficient action to deal with nuisance from commercial bins and failed to respond to her complaint. There is no evidence of fault in how the Council investigated Mrs X’s complaints about nuisance from the bins. The Council delayed in dealing with Mrs X’s complaint about insufficient action by the Council which put her to avoidable time and trouble and caused distress to her. The Council has agreed to remedy this injustice by sending a written apology to Mrs X and making a symbolic payment of £200 to her.

The complaint

1. Mrs X complains that the Council:
1. failed to take sufficient action to deal with nuisance from commercial bins and scooters on an alleyway.
2. failed to respond to her complaint about the matter.
2. As a result, Mrs X’s tenants are caused significant nuisance from overflowing bins and the access to their flat is frequently blocked by the bins and scooters. Mrs X has also said the overflowing bins and condition of the alley has made it more difficult and expensive to obtain a mortgage on her flat and she has been put to significant time and trouble.

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What I have and have not investigated

3. I have investigated matters from September 2021. I have not investigated earlier events as it was open to Mrs X to make a complaint to us sooner. This means I have not investigated how the Council granted planning permission for the businesses to operate as this was granted some years before September 2021.

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The Ombudsman’s role and powers

4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with an organisation’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

8. I have:

• considered the complaint and the information provided by Mrs X;
• discussed the issues with Mrs X;
• made enquiries of the Council and considered the information provided;
• invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

9. The Environmental Protection Act 1990 imposes duties on local authorities to keep clean public highways for which they are responsible.
10. The Council’s complaints procedure provides that it should investigate and respond to a complaint within 20 working days. If a response cannot be provided, it will let the complainant know and say when it hopes to provide a final response.

What happened

11. Mrs X owns a flat in a building which is accessed via an alleyway. Adjacent to the alleyway are businesses which store waste bins in the alleyway. Some years ago, a gate was erected at the entrance to the alleyway by the developer of the flats. The alleyway is adopted highway so is maintainable by the Council.
12. In 2021, a number of people, including Mrs X, raised concerns with the Council about bins overflowing and obstructing the alleyway and the condition of the alleyway. Mrs X discussed the issues with an officer in September 2021. Mrs X’s record of the discussion shows the officer undertook to investigate whether storage for the bins should have been provided and he would speak to the commercial premises about keeping the entrance to the flats clear.
13. Mrs X raised further concerns from her tenants in October 2021 about obstruction by the bins and overflowing waste. Mrs X later raised concerns about delivery scooters blocking the alleyway.
14. The Council’s records show that between September 2021 and February 2023 officers:

• checked with planning enforcement whether the businesses were complying with the conditions of their planning permissions by storing the bins in the alleyway. A planning enforcement officer and waste officer visited the site and considered one business was complying with the condition on the planning permission. The planning enforcement team concluded the planning condition for another business to store their bin within their curtilage could not be enforced due to a lack of space and lack of precision in the wording of the condition.
• wrote to the businesses to notify them of the complaints, to request they manage their waste property and to warn them of the enforcement action that could be taken.
• requested the businesses ensure the bins were locked and made enquiries of the businesses’ waste collection service to see if locks or alternative bins could be provided.
• referred flytipping in the alleyway to the Council’s waste enforcement contractor to investigate. The Council’s records show the contractor visited the site on a number of occasions. On some visits the contractor found the waste had been removed. On other occasions the contractor witnessed flytipping, investigated it and served fixed penalty notices.
• carried out ad hoc monitoring of the bins and provided advice to businesses on how to manage their waste.
• checked if the Council was cleaning the alleyway. Officers confirmed the alleyway was cleaned weekly when operatives could gain access through the gate, and monthly by a mechanical cleaner. The Council has said its street champions checked the area more frequently when it received a number of complaints about the condition of the alleyway.
• advised Mrs X to report the obstruction of the alleyway by delivery vehicles to highways. Officers also contacted civil enforcement officers who advised they patrolled the area regularly and asked delivery vehicle owners to move on. The Council has said it has found drivers return to the area when the civil enforcement officers leave the area.
• concluded the bins had been stored in the alleyway since 2009.

Complaint

15. In January 2022, Mrs X made a complaint to the Council that it had not taken sufficient action to deal with the nuisance from the bins. She also considered the Council was at fault for granting planning permission for the businesses. Mrs X provided evidence to show a mortgage lender would not lend on her property due to the commercial bins. Mrs X did not receive a response to her complaint so she made a complaint to the Ombudsman.
16. The Council responded to Mrs X’s complaint in February 2023. In its response, the Council said it could not respond earlier due to a legal dispute regarding the gate. The Council said:

• There were no errors in the process of granting planning permission for the shops.
• it would be disproportionate to act against the bins stored on the alleyway as the bins do not represent an obstruction to traffic, there is no suitable alternative location for the bins and the storage of the bins on the alleyway was well established. Google streetview showed the bins were located there in 2009.
• It was responsible for ensuring the alley way was kept clean. The Council litter picked and swept the lane weekly and mechanically swept it on a monthly basis. The Council would continue to monitor the alleyway and would take action against flytipping if the perpetrators could be identified. It provided details of how residents could report any further waste problems.
• Environmental health officers had visited the alleyway recently and found no issues.
• It apologised for the delay in dealing with Mrs X’s complaint and failing to keep her informed about the progress of her complaint.

17. The Council sent its response to Mrs X by email. However, it misaddressed the email so Mrs X did not receive it.

Analysis

18. On balance, there is no evidence of fault in how the Council investigated Mrs X’s complaints of nuisance from the bins and delivery vehicles. The evidence shows the Council was exploring its options and actively trying to address the issues in a number of ways between September 2021 and February 2023. The Council has notified the businesses of the complaints and advised on how to manage their waste to prevent nuisance. It has also carried out site visits to establish if the problem is ongoing and taken action against flytipping when it has witnessed it. The Council’s civil enforcement officers have also visited the site to move on vehicles blocking the alleyway.
19. I am mindful that all the action taken may not have fully resolved the issues. But the Council cannot prevent people from flytipping or blocking the alleyway with vehicles. It has a duty to take action to address flytipping and parking issues when they are reported and the evidence shows it has done so in this case.
20. The Council has a duty to keep the highways clean. The Council is routinely cleaning the alleyway so I am satisfied it is complying with its duties.
21. Mrs X disagrees with the Council’s decision that the bins are not obstructing the highway. I could only question the Council’s decision if there was evidence of fault in how it was reached. The Council has considered the matter and explained why it has reached the view that the bins are not obstructing the alleyway. The Council has provided evidence to show that bins have been stored in the alleyway for a number of years. I am therefore satisfied there is no fault in how the Council reached its decision that the bins were not causing an obstruction. So, I do not have grounds to question it.
22. The Council has also considered if it can take planning enforcement action to ensure some bins are stored in a bin store. Councils’ enforcement powers are discretionary. The Council made the decision not to take enforcement action after visiting the site. So, officers had sufficient information to make the decision. The Council has also explained why it considers the condition not to be enforceable. The Council has also considered if the bins can be stored in an alternative location. I am therefore satisfied the Council has given proper consideration to whether it can enforce the condition so I do not have grounds to question its decision.

Complaint

23. The Council took over a year to respond to Mrs X’s complaint and it has acknowledged it could have provided updates to her on the position with her complaint. The Council’s complaints procedure says it should provide updates if it cannot deal with the complaint within 20 working days. So, the failure to provide updates is fault.
24. I also consider the Council’s handling of Mrs X’s complaint was poor and this is fault. The Council has said the delay was caused by legal issues regarding the gate. I am not satisfied the legal issues concerning the gate would have prevented the Council from addressing Mrs X’s complaint about a lack of action to deal with the nuisance from the bins as this is a separate matter. The Council could have explained the action it was taking to address the issues and dealt with Mrs X’s complaint within 20 working days. Had it done so, Mrs X would then have been aware of the action the Council was taking and she may not have made a complaint to the Ombudsman. The Council also misaddressed the email with its response to Mrs X’s complaint. So, Mrs X did not receive its response.
25. As a result of the poor complaint handling, Mrs X was put to avoidable time and trouble and caused some distress which the Council should remedy.

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Agreed action

26. That the Council will:
1. send a written apology to Mrs X and makes a symbolic payment of £200 to acknowledge the avoidable time and trouble and distress caused to her by the Council’s poor complaint handling, including the delay in dealing with her complaint, failure to provide updates and failure to send the complaint response to the correct email address. The Council should ensure the apology to Mrs X is in accordance with our new guidance on remedies for Making an effective apology
2. by training or other means, remind officers that they should provide updates to complainants in the event a response cannot be issued within 20 working days and say when they hope to respond. This is to ensure the Council complies with its complaints procedure.
27. The Council should take the above action within one month of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. Fault causing injustice.

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Investigator's decision on behalf of the Ombudsman