Summary: The Council was not at fault for how it investigated Mr X’s complaints about statutory noise and odour nuisance from neighbouring industrial premises.

The complaint

1. Mr X complained the Council has failed to enforce abatement notices served in 2015 to restrict noise and odours from neighbouring industrial premises. He says the Council has ignored relevant evidence and the noise and odours unreasonably interfere with his enjoyment of his property. He wants the Council to review the evidence and take appropriate enforcement action.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. 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). I have decided there are good reasons to investigate this complaint since 2016. This is when the Council first commissioned an independent noise assessment which showed the level of noise from the premises was sufficient to cause a statutory nuisance.
3. 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)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I read Mr X’s complaint and discussed it with his representative.
6. I made enquiries of the Council and considered information it sent me. I also considered information provided by Mr X.
7. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Legal and administrative background

Statutory nuisance

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises.
10. For the issue to count as a statutory nuisance, the council must decide it:
• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and / or
• injures health or is likely to injure health.
11. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
12. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.

Abatement notices

13. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
14. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.

The Council’s noise control policy

15. Chiltern District Council has a policy to support its effective management of complaints about noise nuisance. The policy says it will use enforcement action to ensure compliance with the law proportionately and with a targeted, but consistent approach.

What happened

16. Mr X lives near industrial premises. Since 2014, Mr X has complained that industrial activity at the premises caused him a statutory nuisance. In October 2015, the Council agreed this was the case, and issued two abatement notices against the company. The notices required the company to reduce both the noise and smells caused by its industrial activities.
17. In April 2016, Mr X complained again. Mr X said he was still experiencing noise nuisance from the premises. The Council decided further investigation was needed. It considered diary sheets submitted by Mr X. In June 2016, it commissioned an independent company to assess the noise levels at Mr X’s property.
18. The report concluded that noise from the premises during the night and at weekends caused a significant disturbance and would have a significant adverse impact on Mr X’s enjoyment of his home.
19. The Council told the company of its findings and asked it to take action to reduce the noise. The company agreed to reduce the noise-causing activities between 6pm and 8am weekdays and at weekends.
20. In July 2016, the Council visited Mr X’s property four times to monitor the noise and check it had abated. During these visits, it only considered noise from the premises to be intrusive once. It did not consider this to be sufficient to amount to a statutory nuisance and concluded the company was no longer in breach of the abatement notices.
21. In August 2016, Mr X complained of odours from the premises causing a statutory nuisance. The Council visited and witnessed the odour. However, it said there was no evidence the smell was happening regularly, so on the evidence it had, it did not consider this amounted to a statutory nuisance.
22. In September 2016, the Council visited Mr X’s property twice to monitor the noise. On both visits, it did not consider the noise level amounted to a statutory nuisance.
23. In December 2016, Mr X was still being disturbed by noise. He commissioned an independent company to assess the noise levels. The report found there was industrial noise which had a significant adverse impact on Mr X’s enjoyment of his home.
24. The Council says Mr X provided it with a copy of this report in March 2017. It said between March and October 2017, Mr X was in talks with the company about the noise disturbance. It said as the two parties were working together to resolve the matter, it did not consider it in the public interest to take further action during this time.
25. In October 2017, Mr X and the company jointly commissioned an independent noise assessment. The report concluded there was noise disturbance which caused a significant adverse impact. The company agreed works to reduce the noise disturbance.
26. In February 2018, the Council contacted Mr X for an update. Mr X told the Council the company had agreed works, but the works had not yet been completed. The Council wrote to the company. It told them to complete the agreed works by the end of March 2018, or it would start legal action.
27. The company confirmed it had completed the work in April 2018.
28. In June 2018, Mr X contacted the Council again complaining of noise and odour disturbance from the neighbouring premises. He completed diary sheets throughout June and submitted these to the Council.
29. In July 2018, an officer visited Mr X’s property twice. They did not witness any odour but did consider there was noise disturbance which needed further monitoring before it could decide if it amounted to a statutory nuisance. In August 2018, the Council installed noise monitoring equipment at Mr X’s home. It analysed six recordings of the noise taken by Mr X. It concluded all the noise occurred within daylight hours and was within acceptable levels. It said if the level of noise recorded happened at night, it would amount to a statutory nuisance, but there was no evidence this was the case.
30. The Council commissioned a further independent noise assessment. This concluded that the current noise levels from the company premises did not cause an adverse impact. Mr X queried if, during the monitoring period, the company had been aware it was being monitored and reduced its noise or had been working at reduced capacity because of the holidays.
31. In October 2018, the Council visited the company. The company confirmed the actions taken to reduce noise disturbance. The Council was satisfied that at the time of the independent monitoring, the company was at full operational capacity and had not been aware the monitoring was taking place. It told the company that as long as noise from the premises remained at the current level, the company was not in breach of the abatement notices and the Council would take no further action.
32. In January and April 2019, Mr X complained again to the Council about excessive noise from the premises. He completed diary sheets in April, May and June 2019. During this time, Mr X also made multiple email and phone reports to the Council. The Council conducted a series of visits to Mr X’s property to try and witness the noise and odour. Mr X’s diary sheets from April 2019 indicated the noise nuisance was present both during the day and night. The Council first conducted two visits during the daytime, with Mr X’s agreement. Mr X then reported noise disturbance on three consecutive evenings, and the Council visited Mr X the following evening. In June, when Mr X reported noise disturbance in the early hours of the morning, the Council completed a night visit between 01:00 and 05:00am a few days later. Council records show it did not consider there was noise or odour that amounted to a statutory nuisance at any of these visits. Mr X says this investigation was ineffective, as the visits were arbitrary in nature and not responsive to his reports of excessive noise or odour. The Council says it made every effort to witness the nuisance and carried out the site visits based on evidence from the diary sheets and information provided by Mr X.
33. The Council decided there was no breach of the abatement notices and it would take no further action. It wrote to Mr X in July 2019 to tell him this.
34. Mr X was dissatisfied with this response and brought his complaint to us.
35. In response to my enquiries, the Council said it had made every effort to witness the statutory nuisance and investigate reported breaches of the abatement notices. It said it had also advised Mr X he could bring his own legal action if he chose to do so.

Analysis

36. When, in 2016, Mr X complained the company was in breach of the noise abatement notice, the Council acted appropriately by investigating further. It acted on the findings of the independent report and reached agreement with the company on the required actions to abate the noise. It then visited Mr X’s property several times to monitor for improvements. It was satisfied the noise was abated and the company was no longer in breach of the enforcement notices. The Council acted as I would expect and is not at fault.
37. Mr X commissioned his own independent noise assessment and in 2017 engaged in talks with the company to try and resolve the issues. The Council says it did not consider it to be in the public interest to pursue any action whilst these talks were continuing. The Council has discretion to decide when or whether to pursue enforcement action and it is reasonable and proportionate that it did not take further action whilst these talks were ongoing. When Mr X told the Council the company had not completed the agreed works, the Council wrote instructing the company to do so and said it would pursue further legal action if it did not comply. This was an appropriate response. There was no fault in the Council’s actions.
38. Following Mr X’s complaint in July 2018, the Council acted appropriately and completed further investigations. It considered the evidence and decided the company was not in breach of the enforcement notices. The Council also visited the company to confirm actions it had taken to reduce noise disturbance. It responded to Mr X’s concerns and considered the evidence appropriately. The Council was not at fault.
39. Mr X says the Council’s investigation into his complaint between April to June 2019 was ineffective, as the site visits carried out were not responsive to his reports of statutory nuisance. However, the evidence does not support this. Although the Council did not respond to each report that Mr X made, it made reasonable efforts to witness the statutory nuisance. It investigated his complaint appropriately and is not at fault.
40. It considered the evidence but decided the disturbance was not sufficient to cause a statutory nuisance and there was no breach of the enforcement notices.
41. 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. On each occasion, the Council has appropriately investigated Mr X’s complaints and when necessary, taken action to ensure the company complies with the abatement notices. As there is no fault in how the Council investigated Mr X’s concerns and came to its decisions, I cannot say there was fault in the decisions made.

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Final decision

42. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman