The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to clear fly tipping on private land. There is insufficient evidence of fault in the Council’s actions to justify an investigation. Plus, further investigation would not lead to a different outcome.
The complaint
Ms X complains about the Council’s delay and failure to act to remove fly tipping on land behind her home. She says this is unsightly and is attracting vermin.
She wants the Council to clear the land, then trace the owner and issue a fine. She also wants it to improve the way it responds to the public.
The Ombudsman’s role and powers
We investigate 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 continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Ms X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X reported fly tipping on land behind her home. She also said the waste was attracting vermin.
The Council advised Ms X the land was privately owned, and it was trying to trace the owner. It confirmed it sent a Community Protection Warning to the email address it had but received no reply. However, it said it was continuing to make enquiries to trace the landowner.
Ms X was not satisfied and complained about the length of time taking to investigate and the lack of action.
The Council confirms it has searched the Land Registry, made enquiries of a neighbouring authority, and sought searches of the National Frand Database and a credit search agency. It also confirmed these enquiries have not been successful and without an address it cannot serve legal notices requiring the owner to clear the site.
Ms X says the Council should clear the site and fine the owner once they have been traced. However, the Council confirms Environmental Health Officers have visited the site and do not consider it to be a statutory nuisance. Therefore, the Council has no statutory duty to clear the fly tipped waste from private land.
The Council has noted Ms X’s concerns about vermin. It says a drain cover on the site is missing and this may be an access point for vermin. It advised the landowner will need to report this to the water authority.
I understand Ms X is not satisfied as the Council has known of her concerns for months and still refuses to act. However, the Council has no statutory duty to clear the waste. It has confirmed the searches it has undertaken to find the landowner and says if it does trace the landowner it will consider taking enforcement action.
The Council has a legal duty to investigate to identify a statutory nuisance and where determined, abate it. The Council has confirmed officers have attended and not witnessed a statutory noise nuisance. It has therefore complied with its duty to follow the Government’s guidelines and its legal duty to establish whether there is a statutory nuisance.
The Council says in the current financial situation, with a limited service budget it focusses fly tip clearance where it has a statutory duty to act.
Our role is primarily to look at the way the Council carries out its administrative functions – not to look at its spending priorities or its policy decisions which are a matter for the electorate rather than the Ombudsman. Our focus lies on the way it makes its decisions and, in the absence of fault in its processes, we cannot question the merits of its decisions. So, it would not be possible for us to consider the Council’s decision not to clear fly tipping on private land when there is no evidence of fault in the way it came to this decision.
The Council has explained the action it has taken, the enquiries it has made to tray and trace the owner and its decision there is no statutory nuisance.
Final decision
We will not investigate Mrs X’s complaint because there we have not seen enough evidence of fault in the way the Council dealt with her report of fly tipping. Also, we cannot require the Council to clear the waste from the private land as there is no statutory nuisance and it has no duty to do so. Therefore, further investigation will not lead to a different outcome.
Investigator's decision on behalf of the Ombudsman