Last week on Wednesday morning I wrote a post to celebrate the council’s repairing some broken bonfire links on its website. I’d found them on the May Day Bank Holiday when I had described a filthy fire which had rather spoiled the day.
At midday that same Wednesday I heard from the Strategic Regulatory Services Manager:
“I understand from my Colleague XXX that you have enquired as to why no out of hours Pollution Control Service is provided by the Council. The Council though having a duty to provide a Pollution Control Service has no legal responsibility to provide an out of hours service I am afraid, the decision as to the level of resources put into providing the service and the hours it operates is one in law for the Council to decide. The Council to my knowledge has never provided a out of hours service and has certainly not during the last 7 years.
In what is an extremely challenging financial climate difficult decisions have to be made with regards to service provision, and that does result in services Pollution Control being no exception having to operate within financial constraints. From both an efficiency perspective, looking at the most effective use of staff time, and a financial one, budgets having already been set for the year, it is not possible to provide an out of hours service in Peterborough this year.
It is appreciated that at times having an officer on call may be helpful to a member of public, officers are however still able through planned measures, to operate when necessary at different in order to gain evidence of any offences being committed. In recent times officers have been able to attend a site at a weekend following prior arrangements in order to observe an illegal bonfire which was known to take place regularly, evidence obtained resulted in the case being put before the courts.
In your particular case XXX will continue to liaise with you over the problems you are experiencing.”
This response confirms the absence of any out of hours toxic fire procedure. It suggests that the council is content with this situation. If, as happened on Monday, the fire service tells the resident that use of their emergency number is not appropriate, the resident has no way to get a toxic fire put out.
Then on Friday I the Pollution Control Officer said:
“Following our conversation earlier this week, I can now provide an update on the issue of the bonfire.
I have spoken to XXX from the Fire Brigade and he is reasonably confident that following the warnings given both by him and his colleagues to the person on site and the Fire Brigade’s action in extinguishing the fire, the problem is unlikely to recur at this particular site.
Given this, the council have decided not to take legal action at this time. The reasons for this are as follows:
- The most useful legislation for dealing with bonfires is the Clean Air Act. However this Act only applies to “trade or industrial premises” or to waste being burned at a site as part of a business’ activities. The premises in question is a domestic property and there is no evidence that the waste was part of the activity of a business – certainly the fire brigade do not believe any of it was brought to the site from elsewhere and the landlord is (at the moment) essentially the occupier of the premises as it is vacant.
- For domestic properties, the primary legislation is the Environmental Protection Act (EPA), which has two main provisions that apply here: Statutory Nuisance and the requirements in relation to duty of care and proper disposal of waste.
- Statutory Nuisance law is rarely applied in ‘one-off’ circumstances because it is much easier to prove the existence (or likely occurrence/recurrence) of a nuisance if it has happened more than once.
- Burning waste such as that which was burned on Monday is against the provisions laid down in the EPA for the proper disposal of waste. However, the burden for the success of legal action on this would fall very much on yourself and the fire officer as given that no officer of the council witnessed the event (for reasons I hope XXX has explained in his email to you) our effectiveness will be limited.
- Additionally, there are a number of tests that must be applied to any intended legal action in order to ascertain whether it is reasonable and proportionate and in the public interest. The council believe that prosecuting an individual for a first offence of this nature is not reasonable or proportionate and would not be likely to result in a particularly harsh penalty to act as a deterrent.
For these reasons, it is not felt that the time, effort and cost required in taking a case to court are justifiable. Yesterday a hand-delivered letter was issued warning of the potential consequences of any further occurrence. Please can you continue to monitor the situation, and should there be a recurrence of the problem we will investigate the likely occurrence of a nuisance.
Should you have any further questions please do not hesitate to get in touch. …”
I am suggesting that we need a working procedure open and available to anybody who wants to get a toxic fire put out and investigated outside the council’s working hours.
As things stand I must dial 999 even though the fire service doesn’t consider these events merit an emergency call.