Summary: Mr B complains the Council fails to act on his reports of statutory nuisances of pollution and noise caused by a neighbouring meat product manufacturing premises close to his home. The Ombudsman will not investigate this complaint. We have not seen any evidence of fault in the way the Considered the complaints. And Mr B can ask the courts to consider the matter.

The complaint

1. Mr B complains the Council has failed to act on his reports of gas oven fumes, pollution from steam/pressure washing and noise from a meat product manufacturing premises behind his home.
2. He says he, his wife and neighbours are suffering ill health, cannot open windows and his property is being damaged because of the actions of the business. He wants the Ombudsman to carry out a full investigation into his concerns.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. The law 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)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service 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)

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How I considered this complaint

7. I considered the information provided by Mr B including:
• His letter of complaint to the Council and the Ombudsman
• A DVD
• Photographs

I have also considered the Council’s responses to his concerns and to my enquiries.

Mr B commented on the draft version of this decision.

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What I found

8. Mr B has been complaining to the Council about various problems he has had with the neighbouring meat product manufacturing premises (albeit under different ownership) since 2004. He complained to the Ombudsman about the Council’s alleged failures in 2011. The investigation was discontinued as the Ombudsman found no evidence of fault.
9. The Council has confirmed to Mr B that the gas boiler used at the premises is no different to any other gas boiler. It discharges from a flue on the ridge of the building roof which is a suitable location for the flue. It has also advised that the ovens used on site are electric and therefore do no emit products of combustion.
10. Mr B has given the Council copies of photographs which he says are evidence that a red dust or sludge is coming from the premises and damaging his property. The Council says the photos are ones which he has sent in several times and are not proof that the red matter originates from the neighbouring premises.
11. The Council also confirms the premises is inspected by its environmental health officers who have given advice to the owner. But it stresses that at no point has it found there to be a nuisance arising from the premises that affects Mr B’s home.
12. Turning to Mr B’s complaints about noise, again officers have visited Mr B’s home and not witnessed any statutory nuisance.

Assessment

13. Mr X has been aware of the matters he is complaining about for more than 12 months. Therefore his complaint is late. I have considered whether to exercise my discretion and investigate this complaint even though it is late.
14. Under section 79 of the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance.
15. The Act defines a number of matters as being a statutory nuisance including:
• any premises in such a state as to be prejudicial to health or a nuisance
• fumes or gases emitted from premises so as to be prejudicial to health or a nuisance; and
• dust, steam, smell or other effluvia arising on business premises and being prejudicial to health or a nuisance
16. If a council identifies there is a statutory nuisance it must serve an abatement notice on the person causing the nuisance.
17. Mr B has been complaining to the Council for many years about alleged nuisances occurring at the site, under more than one owner. The Council has visited the processing premises and Mr B’s home. It confirms it has not witnessed any statutory nuisances.
18. If Mr B believes his neighbour is causing a statutory nuisance then under section 82 of the Environmental Protection Act 1990, he can bring a claim of statutory nuisance in the magistrates’ courts himself.
19. As stated in paragraph 3 above, the law says we cannot normally investigate a complaint when someone could take the matter to court. However, I have discretion if I consider it would be unreasonable to expect the person to go to court.
20. In this case the Council has visited Mr B and his neighbour many times and not found evidence of nuisance. If Mr B disagrees with the Council’s findings, then I consider it reasonable for him to ask the court to consider the matter.
21. As I consider it is reasonable for Mr X to ask the court to consider his complaint, I have decided not to investigate this late complaint.

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Final decision

22. I will not investigate this complaint. It is late and I have not seen any evidence of fault in the way the Council considered Mr B’s concerns. And he can bring a claim for statutory nuisance in the magistrate’s court.

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Investigator's decision on behalf of the Ombudsman