Omowumi Olatunde v Coventry City Council - Safer Housing and Communities

1. The Appellant appeals against the requirement to pay a fixed penalty of £100 imposed by the Respondent in relation to an alleged failure to comply with a notice served under section 46 of the Environmental Protection Act 1990 (“ the Act ”). The law

2. Section 46 of the Act provides that a waste collection authority may serve a notice (a section 46 notice) requiring an occupier to place waste for collection in receptacles of a kind and number specified. It may also impose requirements as to the placing of receptacles and steps to be taken by the occupier to facilitate waste collection.

3. Section 46 A of the Act provides that where a waste collection authority is satisfied that a person has without reasonable excuse failed to comply with a section 46 notice and the person’s failure to comply has caused or is likely to cause a nuisance or has been or is likely to be detrimental to any amenities of the locality, they may give a written warning to the occupier of the relevant property. Subsection (3) makes provision as to the content of the written warning.

4. Subsection (4) provides that where a written warning has been served, the waste collection authority may require the person to pay a fixed penalty to the authority if satisfied that the person has failed to comply with the section 46 requirement identified in the warning within the period specified. Subsection (7) provides that where a written warning has been given a requirement to pay a fixed penalty may be imposed if within one year of the date the written warning was given, the person has again failed without reasonable excuse to comply with the section 46 requirement identified in the warning and the failure to comply has had or is likely to have the consequences described.

5. Section 46 C of the Act requires that before a requirement to pay a fixed penalty can be issued, a notice of intent must be served. This must set out the grounds for requiring payment of a fixed penalty; the amount that would be required to be paid; and the right to make representations as to why payment of a fixed penalty should not be required. It provides that a final notice must be served not before 28 days after the notice of intent. The final notice must contain the grounds for requiring payment of a fixed penalty; the amount of the fixed penalty; details of how payment should be made; notice of the right of appeal; and the consequences of not paying the fixed penalty.

6. Pursuant to section 46 D a person served with a fixed penalty final notice may appeal to the First-tier Tribunal. On appeal the tribunal may withdraw or confirm the requirement to pay a fixed penalty. The requirement to pay the fixed penalty is suspended pending determination of any appeal.

7. It is for the respondent to show on the balance of probabilities that sub section 46 A(1) is satisfied. If so, the appellant may raise a reasonable excuse. If one is shown, it is then for the respondent to show that the excuse is not reasonable or should not be accepted. The Respondent’s decision

8. The Respondent issued a final notice to pay a fixed penalty dated 3 July 2025. It stated that the Appellant had previously been sent a notice of intent to pay a fixed penalty and that on 20 May 2025 it was observed that the Appellant had subsequently failed to comply with the same or a similar section 46 requirement. The reasons given for the penalty were that the Appellant had: a. left the bin on the footpath after it was emptied and did not return it to within the boundary of the property; and b. Not placed the bin out for collection by 7am and/or did not remove it from the footpath by 7am the following day.

9. The notice also included advice about the consequences of failure to pay the fixed penalty, the right of appeal and the fact that the requirement to pay will be suspended pending the outcome of any appeal. It was accompanied by an opportunity to pay a fixed penalty notice. The Appellant’s case

10. The Appellant appealed the fixed penalty notice to the Tribunal by way of form GRC1 dated 31 July 2025. He stated that he did not receive any prior written warning, so the proposed fine came as a complete surprise to him.

11. He stated that the property is shared between six adults, which has made managing communal responsibilities such as waste disposal particularly challenging. He said that after receiving the notice, he spoke to his letting agent and suggested creating a WhatsApp group and implementing a bin rota to encourage shared responsibility, which has helped improve coordination and accountability around waste disposal. He also noted that there have been times when the council’s waste collection has been delayed, especially when Friday collections are missed and rescheduled to Saturday, which have meant there is no option but to leave the bins out longer.

12. The Appellant stated that he is also currently facing financial hardship and the fine has placed additional strain on him. In support of this, he provided a copy of his bank statement. The Respondent’s response to the appeal

13. In the response to the appeal, the Respondent stated that it is the occupant’s responsibility to ensure that waste bins do not obstruct the public footpath. As one of the occupants, the Appellant carried a duty of care to avoid such obstruction. This duty includes taking reasonable steps to coordinate with co-occupants to ensure that bins are removed in a timely manner following waste collection. This obligation is particularly important in shared accommodation where tenants have differing routines. In such circumstances, arrangements should be made in advance to avoid prolonged obstruction. The Appellant’s failure to put such arrangements in place amounts to a breach of this duty and reflects a lack of due diligence in handling the shared responsibility in the House in Multiple Occupation (HMO).

14. The Respondent noted that all tenants at the property were issued a written warning prior to the imposition of the fine and that no representations or objections were received in response. The fine was therefore issued in accordance with established procedures and only after occupants were given the opportunity to address the issue. It stated that while the Appellant has since taken steps to improve co-ordination among tenants, these actions were implemented only after the fine was issued and do not negate the original breach. Chronology

15. The chronology is largely unclear from the documents in the bundle. The Respondent wrote to the Appellant by email dated 27 August 2025 and proposed the following statement of facts to be agreed: “1. Omowumi Olatunde is an occupant of 16 Welland Road, Coventry, CV1 2DE

2. The bins for 16 Welland Road were observed on the footpath in breach of section 46 requirements on 11 March 2025

3. A section 46 notice under the Environmental Protection Act 1990 was served on 24 March 2025

4. The bins were again observed on the footpath in contravention of the Section 46 notice on 14 April 2025.

5. A warning notice was served on the occupants on 25 April 2025.

6. The bins were observed on the footpath in contravention of the Section 46 notice on 20 May 2025

7. A notice of intent to issue a fixed penalty was served on 30 May 2025

8. A final notice to pay the fixed penalty was served on 3 July 2025”

16. The Appellant responded to the proposed statement of facts by email dated 29 August 2025 and stated “I was not aware of this information or that there had been any warning prior to the notice of intent to issue a fixed penalty. I therefore wrote to the council, as I had carried out my due diligence on my part. I am one of seven occupants in the house. I also explained that I could not afford the penalty, but I did not receive any response from the council .” Discussion and conclusions

17. The first issue is whether the Respondent has demonstrated on balance of probabilities that the Appellant has failed without reasonable excuse to comply with a requirement imposed by the public authority under section 46 . If this is satisfied, the Tribunal must then go on to consider the warning notice under section 46 A and the Notice of Intent under section 46 C.

18. There is no evidence from the Respondent in the bundle of either the imposition of a requirement under section 46 on the Appellant prior to the issuing of a written warning and/or notice of intent to impose a financial penalty, or failure to comply with such a requirement. There is also no evidence that it was clear there was a requirement not to leave bins on the street.

19. Under section 46 A(1) of the Act , before issuing a written warning the Respondent must also be satisfied that the person’s failure to comply with a section 46 requirement has caused, or was likely to cause a nuisance or has been, or was likely to be, detrimental to the amenities of the locality. It is for the Respondent to demonstrate this.

20. The bundle contains a single photograph which it states was taken on 30 May 2025 showing bins outside the property. There is no metadata to verify that this photograph was taken on this date or evidence to show by whom it was taken. We note that 30 May 2025 was a Friday following a bank holiday on the previous Monday (26 May 2025) which may or may not have resulted in a delay to collections as outlined in the Appellant’s GRC1 form. It also appears that if taken on 30 May 2025, this photograph was taken on or about the day when the notice of intent to issue a penalty was served, rather than on one of the days when a contravention is alleged

21. There is no evidence whatsoever other than the assertion in the Respondent’s email dated 27 August 2025, which is not a witness statement verified by a statement of truth, that the bins were observed on the footpath on 11 March 2025, 14 April 2025 or 20 May 2025. Nor is there any evidence of a section 46 notice having been served on 24 March 2025 or a warning notice having been served on 25 April 2025. No copies of any such notices or evidence of service such as a certificate of service or witness statement appear in the bundle. Nor is there a copy of the Notice of Intent which the Respondent says was served on 30 May 2025.

22. The only evidence served by either party which appears to indicate service of any document is not included in the bundle. Supporting document 2 to the Appellant’s GRC1 shows a photo of what may be a page of a document indicating a section 46 breach in a WhatsApp message from the Appellant to his letting agent dated 1 June 2025 which could possibly be the notice of intent, but the Tribunal cannot establish this on balance of probabilities from the evidence provided. Supporting document 7 to the Appellant’s GRC1 shows the Appellant sending a WhatsApp message to his letting agent on 8 July 2025 with a photo of the fixed penalty notice.

23. On the evidence before it, the Tribunal cannot therefore be satisfied that the Respondent served a section 46 notice on the Appellant on 24 March 2025 or a Warning Notice on 25 April 2025, or that the alleged contraventions of section 46 took place.

24. Section 46 (A)(4) of the Act states that where a written warning has been given in respect of a failure to comply that is continuing, an authorised officer of the waste collection authority may require the person to whom the written warning was given to pay a fixed penalty to the authority if satisfied that the person has failed to comply with the section 46 requirement identified in the warning within the period specified by virtue of subsection (3)(d). As the Respondent has failed to satisfy the Tribunal that a section 46 notice or written warning notice were served on the Appellant as alleged or at all, the Tribunal cannot be satisfied on balance of probabilities that the Respondent was entitled to impose a fixed penalty on the Appellant for non-compliance.

25. Accordingly, we allow the appeal.