The Ombudsman's final decision
Summary: We will not investigate this complaint about section 47 notices issued to businesses by the Council in relation to the storage/disposal of their commercial/industrial waste. It is reasonable to expect the complainant to pursue a court remedy instead.
The complaint
Mr X complains section 47 notices issued by the Council do not comply with the law. He says this is having a detrimental effect on his customers and, in turn, his own waste management business.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We can 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. So, we do not start an investigation if we decide: any fault has not directly caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or there is another body better placed to consider this complaint, or it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law also says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) We may also decide not to start an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
How I considered this complaint
I considered: information provided by Mr X and the Council about its response to his complaint.
the Council’s ‘Waste Enforcement Policy’.
the Ombudsman’s Assessment Code.
My assessment
Under section 47 (s47) of the Environmental Protection Act 1990, the Council may serve notice on the occupier of a premises requiring them to provide particular receptacles for the storage of commercial/industrial waste, where that waste is likely to cause a nuisance or to be detrimental to the amenities of the locality if it is not stored in such receptacles.
As I understand it, Mr X/his business has not been issued with a s47 notice.
If his customers have received a s47 notice, then it would have been open to them to challenge it (on the grounds that the requirement(s) of the notice are unreasonable, or the waste is not likely to cause a nuisance or be detrimental to the amenities of the locality), by appealing to the magistrates court. Where a specific court remedy has been put in place by Parliament, we would normally expect a person to use it. So, with reference to the restriction detailed in paragraph 4 above, we would be unlikely to investigate if one of Mr X’s customers were to submit a complaint about this issue.
Similarly, if Mr X believes the s47 notices breach competition laws and are affecting his own waste management business, the Ombudsman would normally take the view that such claimed losses are more appropriately addressed via court action. The Ombudsman cannot determine who is liable for any such losses, and we have no power to order the Council to pay compensation. It therefore seems reasonable to expect Mr X to pursue a court remedy to protect his business, so we will not investigate this aspect of the complaint either.
Finally, if Mr X’s customers have received Fixed Penalty Notices (FPNs) for breaching the requirements of the s47 notice, then those businesses/individuals were entitled to contest this with the Council in the first instance. If the Council decided not to withdraw the FPN, then they could have raised their defence during any subsequent prosecution by the Council. The restriction detailed in paragraph 5 above may therefore apply to any complaints submitted by Mr X’s customers about FPNs they have received.
Final decision
We will not investigate Mr X’s complaint because it is reasonable to expect him to pursue a court remedy in relation to the claimed impact of the s47 notices on his business.
Investigator's decision on behalf of the Ombudsman