Summary: We have discontinued our investigation of this complaint, about waste management at a neighbouring property. This is because we could not add anything meaningful to the Council’s responses.

The complaint

1. I will refer to the complainant as Ms B.
2. Ms B complains about waste management at a neighbouring house in multiple occupation (HMO). She says the property’s bins are frequently left overflowing, which attracts flies and vermin and causes what she considers to be a statutory nuisance. Ms B considers the Council should instruct the landlord of the property to commission a professional bin cleaning service.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’.
4. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I reviewed Ms B’s correspondence with the Council.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Ms B has made several complaints to the Council about poor waste management at the HMO, which leaves waste exposed to vermin and flies. She says on several occasions she has found maggots on her own property because of this.
8. The Council has visited the property twice over a year to inspect this and other issues Ms B has raised. On both occasions it says it has found no problem with waste management, with the bins clean and in order. However, Ms B says this is because she has been cleaning the bins herself.
9. Ms B has referred her complaint to the Ombudsman, saying the Council has a legal duty to address the waste management issues and that it should require the landlord to subscribe to bin cleaning and jet washing services.

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Legislative background

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
11. 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

12. 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.

13. 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.
14. 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.
15. 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

Abatement notices

16. 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.
17. 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.
18. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Section 82 of the Environmental Protection Act 1990

19. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.

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Analysis

20. I understand Ms B considers the waste management problems at the HMO to amount to a statutory nuisance. And, if this were the case, it would be the Council’s duty to serve an abatement notice on the landlord and/or occupiers, requiring them to take steps to address the nuisance.
21. However, what constitutes a statutory nuisance is a matter of professional judgement for Council officers to determine. And, in doing so, we would generally expect them to visit the site in question and seek to witness the alleged nuisance first hand, on one or more occasions.
22. In this case, the Council has visited twice, but on both occasions found the bins clean and in good order. According to Ms B, this is because she has had the area cleaned herself. While I understand Ms B’s desire to do this, in doing so it appears she is removing the evidence the Council would need to identify whether there is a statutory nuisance.
23. I note Ms B has supplied the Council with a number of photos of the area when it is not clean, but we would generally expect officers to seek their own, objective evidence of a nuisance before deciding it reaches the threshold to take action.
24. And, even if the Council did find there was a statutory nuisance here, it could not require the landlord to commission cleaning services as Ms B has requested. An abatement notice simply requires the recipient to stop the nuisance and, usually, prevent it from happening again. How the recipient achieves this is up to them.
25. This being the case, I do not consider there is anything to be gained by further investigation here. It is for the Council to decide whether there is a statutory nuisance, and we could not criticise it for not doing so when it has found the bins clean and in good order both times it has visited. Nor could we ask the Council to require the landlord to hire cleaning services.
26. Ms B should note she also has the right to approach the magistrates’ courts directly if she feels there is a statutory nuisance, under s82 of the EPA 1990. This process does not involve the Council, and instead the court itself will review the evidence and determine whether a statutory nuisance exists.

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Final decision

27. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman