Summary: There is no evidence of fault by the Council. It has investigated Miss X’s complaints about the placement of a commercial refuse bin but has reached a decision not to take action after considering all the facts.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council has not taken action to prevent a commercial waste bin being placed on the footpath next to her property. Miss X says that the bin attracts vermin, that people use it to climb on her roof and it can block her access.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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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What I have and have not investigated

4. I have not investigated matters that were considered in Miss X’s previous complaint to the Ombudsman (19 011 331). This is includes the Council’s decision that there was no breach of planning permission over the storage of the bins.
5. 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)
6. Miss X received a response to her official complaint from the Council in November 2023 and so has been aware of the matters she complains about for over 12 months. I have investigated her complaints from July 2023 onwards, which is 12 months before she submitted her complaint to the Ombudsman. I have not exercised discretion to investigate prior to that date as Miss X has made previous complaints to the Ombudsman on the same issue, prior to this date and could have complained earlier.

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How I considered this complaint

7. I read the papers put in by Miss X.
8. Miss X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

9. Miss X complains the Council has not ensured that owners of a business put their bin away from her property. Miss X says the bin can block her access, the refuse attracts vermin, that passers-by urinate behind the bin and that it is used to climb onto her roof.
10. The Council has said that previously it supplied the commercial bin to the business so it could ask its employees to replace the bin in a specific location. However, the bin is now collected by another company so it has no control over where the bin is replaced.
11. In response to Miss X’s official complaint the Council has said that it has ‘never established a statutory nuisance or any offence in relation to littering, food refuse smell or vermin and is therefore unable to take any statutory enforcement action on this matter’. And ‘that she should report members of the public urinating in a public place to the police’. In the previous complaint to the Ombudsman, highway officers concluded that due to the width of the pavement, the bin was not causing an obstruction on the highway.
12. In response to my enquiries, the Council said:
• The area that the commercial bin is stored on is highway.
• The commercial bin is collected by a private commercial waste company not the Council, so it has no control over the placement of the bin by the contractor.
• The planning department said ‘all the relevant planning considerations have been complied with in that uses that needed planning permission are using bins within curtilage and the space is available for them to be stored, albeit domestic type bins.
• The Environmental Health department has not identified a statutory nuisance with the placing of the waste receptacle on the highway. The placing of a waste receptacle can be enforced under the Environmental Protection Act 1990, s47 4(c) ‘the placing of the receptacles for that purpose on highways’. However, there is no facility/area for the business to store the waste receptacle off the highway.
• The Council said ‘it did look into enforcement action. Due to the building configurations, the owners do not have access to a suitable space for off street storage. Following investigation, it was agreed that the bin could remain on the highway in a designated area, which is away from the complainant’s property. The footway at this location is sufficiently wide that it does not cause an obstruction for highway users. This was agreed on the condition that the owners ensured that the bins were kept in the designated zone. Subsequent monitoring suggests that this is being complied with’.
• The Council said ‘it does not have any policies preventing commercial waste storage on the highway, but we do investigate all complaints and assess each on merit, much as we would consider applications for pavement licenses for commercial premises wishing to extend businesses onto the highway. The Highway Authority can use their powers to enforce where the bins represent an obstruction of the highway, but in this case the footway width is substantial and the bin storage is against a gable end where it does not represent an obstruction’.
13. Miss X has many photographs and videos of the problems she says are caused by the bin. I understand her concerns but our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
14. I have looked all the information and can find no evidence of fault by the Council. It has investigated and responded to Miss X’s complaints, but has reached a decision that no action can be taken. I appreciate Miss X disagrees with this decision but I can find no evidence of fault by the Council when reaching the decision.

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Final decision

15. I have completed my investigation of this complaint. This complaint is not upheld as there is no evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman