Summary: Mrs X complained the Council has failed to deal with the nuisance caused by her neighbour’s private animal rescue sanctuary which she says causes odour problems and problems with flies and rats. The Council is not at fault in the way it responded to Mrs X’s concerns and in the actions it took.

The complaint

1. Mrs X complained the Council has failed to deal with the nuisance caused by her neighbour’s private animal rescue sanctuary which she says causes odour problems and problems with flies and rats.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the information provide by Mrs X and have discussed her complaint with her on the telephone.
5. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and considered any comments I received in making this final decision.

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What I found

Relevant Legislation

7. The Prevention of Damage by Pests Act 1949 gives local authorities powers to require owners or occupiers to take action to keep their land free from mice and rats. The local authority can serve a notice on owners or occupiers requiring them to take reasonable steps such as treatment for pests or structural works to keep their land free from rats and mice.
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
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises
10. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be 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), 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. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice.
13. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

What happened

14. Mrs X lives in a village surrounded by agricultural fields. A neighbour in the street where she lives has run a private animal rescue sanctuary for a number of years.
15. In May 2019 Mrs X complained to the Council about flies, rats and smells from the animal sanctuary.
16. An officer discussed the complaint with Mrs X and provided her with diary sheets which she returned to the Council in mid-June. On these she noted the number of bluebottle flies entering the house which was around six to ten each day. She also noted the number of small fruit flies counted on fly tape, which was around 40-50 a week. In a covering letter she said rats were running up and down the fences and roof of the sanctuary mainly in the evening. On one evening she counted ten rats on the neighbour’s fencing in ten minutes.
17. The Council visited Mrs X’s neighbour in July 2019. It found a small amount of odour but this could not be dealt with as a statutory nuisance as the property was not a business. It found no sign of significant numbers of flies and no evidence of a rat problem. It found the flies Mrs X referred to were cluster flies which were not associated with the keeping of animals. It found Mrs X’s neighbour had a pest control contract in place to ensure rat levels did not rise.
18. The Council visited Mrs X’s neighbour again in September 2019 but found no change from the previous visit. An officer emailed Mrs X with an update and explained they had done as much as they could to investigate her concerns.
19. The Council later consulted its planning department regarding the structures at the neighbour’s property. It advised there was no basis on which it could take action about planning consent.
20. In October 2019 another neighbour complained to the Council about rats. The Council visited and found signs of a route used by rats but no evidence of rats nesting. The Council officer arranged to visit the animal sanctuary with an officer from the RSPCA in November 2019.
21. During the visit, the officer found evidence of mice nesting in straw at the animal sanctuary. There was evidence of rats using a route through the area but not of nesting rats. They saw evidence of pest control being in place. The Council served Mrs X’s neighbour with a notice setting out the actions to be taken to address the mice problem. They later carried out a follow up inspection and were satisfied Mrs X’s neighbour had carried out the actions required.
22. Mrs X emailed the Council in October 2019 to complain about the Council’s response to her concerns.
23. The Council responded in early November 2019. It explained that nuisance legislation for odour did not apply to domestic properties. During both announced and unannounced visits officers found no evidence of significant numbers of flies and the premises were not considered to be in poor condition. It noted historically there had been a rat problem associated with the animal rescue sanctuary. The property owner had taken action to address this and officers could not find evidence of the problems Mrs X reported during recent visits. The owners had ongoing pest control in place and it saw this, alongside the existing pest proofing, as adequate pest control. It noted the RSPCA had visited previously and had no issues with the condition of the animals. It was therefore unable to take any enforcement action.
24. Mrs X remained unhappy and the Council considered her complaint at the second stage of its complaints procedure. It responded to Mrs X in January 2020. It remained of the view the number of flies reported was not sufficient to be considered a statutory nuisance and it had not found evidence of a substantial rat problem. It said it had carried out a recent unannounced visit and it would continue to visit and work with the resident to monitor the situation. It advised Mrs X of the option to take private action for nuisance under section 82 of the Environmental Protection Act 1990.
25. During a follow up visit in March 2020 the officer noted no issues at the animal sanctuary.

Findings

26. We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made.
27. Mrs X’s neighbour does not require a licence to operate a private animal sanctuary and the Council has no power to shut it down. The Council has a duty to investigate complaints of potential statutory nuisance and to deal with rodent issues and it has done so.
28. Mrs X’s amenity may be affected by the presence of the animal sanctuary but that in itself does not mean the Council can take action. The Council cannot take formal action without robust evidence that a statutory nuisance is occurring.
29. The Council’s records show when Mrs X has complained it asked her to complete diary sheets, considered these and undertook announced and unannounced visits to her neighbour. It found no evidence of nesting rats and was satisfied with the pest control in place at the animal sanctuary. It took action under the Prevention of Damage by Pests Act when it found evidence of nesting mice and followed this up to ensure the required actions were carried out. It considered the number and type of flies was not sufficient to be a statutory nuisance.
30. The officers decided there was no evidence of a statutory nuisance and so could not take formal action under the Environmental Protection Act. We cannot question council decisions if there is no evidence of fault in the way decisions were made. The Council has acted in line with its powers and procedures and there is no evidence of fault in the way the Council reached its decisions.

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Final decision

31. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman