Cheshire East Council (17 017 313)

Category : Other Categories > Land

Decision : Upheld

Decision date : 15 Oct 2018

The Ombudsman's final decision:

Summary: The Ombudsman found fault with the Council’s failure to act on information the complainant provided about waste and litter on Council land adjoining his home. This caused the complainant unnecessary inconvenience and frustration. The Council agreed to remove waste from the site and monitor the situation to see whether further action is needed.

The complaint

  1. The complainant, who I will call Mr T, complains that the Council failed to maintain public land near his home and keep it free from refuse and fly-tipping waste. Mr T says this situation remains ongoing and that the Council is in breach of its statutory duties by failing to keep the land free of waste. Mr T says he has had no choice but to clear the waste himself.

What I have investigated

  1. We cannot investigate late complaints unless we decide there are good reasons to do so. 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)
  2. I have investigated the action taken by the Council further to the online fly-tipping report Mr T submitted in June 2017. This is because these matters are effectively ongoing and so this aspect of Mr T’s complaint is not late.
  3. In his correspondence, Mr T complains that the Council has failed to maintain the land appropriately since he moved to his current property in 2002. He says he has been required to maintain the land at his own expense as a result.
  4. I have not investigated these historic matters and have explained the reasons for this in the ‘parts of the complaint I did not investigate’ section of this decision statement.

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The Ombudsman’s role and powers

  1. 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)

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How I considered this complaint

  1. In making my final decision, I considered evidence provided by Mr T and discussed the complaint with him. I also considered records and documentation from the Council. In addition, I took account of relevant legislation and guidance.
  2. In addition, I considered comments from both Mr T and the Council on my draft decision statement.

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What I found

  1. Section 89(1)(c) of the Environmental Protection Act 1990 (the Act) places a duty on litter authorities to ensure ‘relevant land’ “is, so far as is practicable, kept clear of litter and refuse.”
  2. Section 86(4) of the Act defines ‘relevant land’ as land that “is open to the air and is land…which is under the direct control of such authority to which the public are entitled or permitted to have access with or without payment.”

Code of Practice on Litter and Refuse

  1. The Department for Environment, Food and Rural Affairs (DEFRA) produces guidance for local authorities in respect of their duties under the Act. This is entitled the Code of Practice on Litter and Refuse (the Code).
  2. The Code classifies the different types of land managed by local authorities with duties under the Act into four categories:
  • “High intensity of use (busy public areas)
  • Medium intensity of use (‘everyday’ areas, including most housing areas occupied by people most of the time)
  • Low intensity of use (lightly trafficked areas that do not impact upon most people’s lives most of the time)
  • Areas with special circumstances (situations where issues of health and safety and reasonableness and practicability are dominant considerations when undertaking environmental maintenance work)”
  1. The land Mr T is complaining about is considered to be a ‘low intensity’ zone.
  2. Section 9 of the Code sets out that “[d]uty bodies are expected to set their cleansing schedules so that they meet the duty to keep their relevant land clear of litter and refuse”.
  3. Section 9.4 of the Code provides a timescale for each category of land within which the litter authority should return the land to “an acceptable standard”. For ‘low intensity’ land, this is 14 days.

Fly-tipping

  1. The government produces additional guidance for local authorities in respect of fly-tipping. This sets out that the local authority must assess any incident of fly-tipping to gather information about the circumstances, amount and type of waste, and its potential effects on people and the environment.
  2. The guidance says the local authority must remove and dispose of all fly-tipped waste if it’s on ‘relevant land’.
  3. The guidance also states that local authorities should contact the Environment Agency if the illegally-dumped waste is above a certain volume, and the Health and Safety Executive if the waste contains asbestos.

Key facts

  1. Mr T lives in a property adjoining a small area of public woodland that is owned by the Council.
  2. In June 2017, Mr T submitted an online form reporting fly-tipping on the land.
  3. Mr T contacted the Council again in August 2017 to request a meeting to discuss various concerns. This included the accumulation of waste on the land.
  4. Mr T contacted the Council again in September 2017. He said the waste he had reported in June 2017 had still not been collected. Mr T said he had been forced to maintain the land for many years due to the Council’s failure to do so. Mr T requested the Council maintain the land in accordance with its duties under the Act.
  5. The Council responded to Mr T in October 2017. The Council said it felt it had investigated and responded to Mr T’s concerns appropriately.
  6. Mr T subsequently approached the Ombudsman in February 2018.
  7. Following contact from the Ombudsman, the Council inspected the land in both May and August and removed some items of waste.

Analysis

  1. Mr T complained that the Council repeatedly failed to clear waste from the land adjoining his property. Mr T said this waste included hazardous materials and items, such as asbestos, used syringes and medical waste. Mr T said this left him with no option but to maintain the land himself at his own expense.
  2. The Council said it did not have the resources to maintain the land to the degree Mr T expected. It said the land was a public open space and that it had not asked Mr T to maintain it. The Council said “[w]e have the right to use and maintain the land as we wish to within the law.”
  3. In response to my enquiries, the Council said it did not receive an online report from Mr T in June 2017. The Council acknowledged it had received an anonymous report. However, it said the report did not contain sufficient detail about the location and nature of the waste for it to act upon. The Council said it would ordinarily have contacted the person reporting the waste for clarification but that was not possible in this case.
  4. Mr T provided me with a screenshot of the online report he submitted in June 2017. This contains his name, address and contact details. The form describes the waste as being located off a main road on Council-owned land.
  5. The Council also provided its copy of the report. This version of the form includes the same description of the location of the waste. However, it contains no name, address or contact details.
  6. I understand Mr T’s view to be that the Council altered its version of the form to provide justification for its failure to clear waste from the site. I have seen no persuasive evidence to support this view. Nevertheless, I am unable to explain the discrepancy between the two versions of the form.
  7. The Council told me it owns a large amount of land in the area. The Council said it was not possible to identify the location of the waste from the information provided in its version of the online form. The Council said it did not receive any further online reports from Mr T during this period.
  8. The Council’s records show it did make two waste collections from the general area (in October 2017 and January 2018). These collections were in response to online reports from other nearby residents. However, neither collection was from the site Mr T is complaining about.
  9. Mr T has provided the Ombudsman with copies of his correspondence with the Council in Between August and October 2017. This shows he continued to raise concerns during this period. In one email of September 2017, Mr T referred to “litter, fly tipping and hazardous waste” on the site.
  10. In his representations to the Ombudsman, Mr T provided photographic and video evidence of litter and waste on the site throughout the period he is complaining about. Despite this, the Council took no action to inspect the site or remove any waste until May 2018, following contact from the Ombudsman.
  11. The main process for reporting litter and fly-tipping is via the Council’s online form. However, I accept this is not the only means by which a local resident can report concerns. Although Mr T only submitted one online report during this period, the correspondence shows he was reporting his concerns by email.
  12. The Council has a duty under the Act to keep ‘relevant land’ (such as the site Mr T is complaining about) free from litter. Mr T brought this to the Council’s attention on several occasions. In my view, Mr T’s correspondence should have prompted the Council to take action to inspect the site and, if necessary, remove any waste. That it did not do so is fault.
  13. In his correspondence with the Ombudsman, Mr T says the Council’s inaction forced him to clear waste from the land at his own expense on several occasions. He says the Council should compensate him for this.
  14. I do appreciate that Mr T has found this situation frustrating and accept the Council did not take action when it should have. However, I do not agree this meant Mr T had to remove the waste himself. As Mr T has correctly identified, this is the Council’s responsibility as the local litter authority. It was ultimately Mr T’s decision to remove the waste himself. On this basis, I found no grounds on which to recommend that the Council compensate him.
  15. The Council has agreed to take action to address the ongoing problem with waste on the site. This is detailed below.

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Agreed action

  1. Within one month of my final decision statement, the Council will:
  • Apologise to Mr T for the inconvenience and frustration caused to him by its failure to act on information he provided about litter and waste on the site near his home. The Council will provide the Ombudsman with a copy of this letter.
  • Arrange a site visit, to include Mr T, to identify any remaining waste. The Council will then arrange for this to be removed.
  • Monitor the site for a period of three months. This should include fortnightly site visits and collections as necessary. The Council should also take photographs of the site before and after collections.
  1. The Council will write to Mr T and the Ombudsman with the results of this monitoring. This should include details of any further action it proposes to take to ensure the land is maintained in accordance with the Council’s duties under the Act.
  2. It will be open to Mr T to report any specific instances of littering or fly-tipping using the Council’s online form in the meantime.

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Final decision

  1. I found fault by the Council as it failed to act on information Mr T provided about litter and fly-tipping on the land adjoining his home.
  2. In my view, the actions the Council has agreed to undertake represent a reasonable and proportionate remedy for the injustice this caused to Mr T.
  3. I have now completed my investigation on this basis.

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Parts of the complaint that I did not investigate

  1. As I explained above, we cannot investigate late complaints unless we decide there are good reasons to do so.
  2. In his correspondence, Mr T refers to similar complaints about the Council’s maintenance of the land in question dating back to 2002, when he first moved to the property.
  3. However, Mr T did not approach the Ombudsman about these matters until February 2018. These historic aspects of the complaint are late, therefore.
  4. In my view, Mr D could have approached the Ombudsman about these matters at an earlier stage than he did. I have seen no good reason to investigate these aspects of the complaint given the time that has now passed since these events took place.

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Investigator's decision on behalf of the Ombudsman

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