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South Hams District Council (18 016 484)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 19 Mar 2019

The Ombudsman's final decision:

Summary: The complaint concerns alleged nuisance from plant near Mr and Mrs B’s home. The Council was at fault for not sharing information with its environmental health section in September 2018. That caused Mr and Mrs B avoidable uncertainty and frustration. The Council agreed our recommendation to put matters right. I do not fault the Council’s later actions.

The complaint

  1. The complainants, whom I shall refer to as Mr and Mrs B, complain the Council has not dealt with their reports of noise, light and odour nuisance from plant near their home. Mr and Mrs B say consequently they and their family have lost amenity and sleep and cannot currently sell their house.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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

  1. I considered the information Mr and Mrs B provided and discussed the complaint with Mrs B. I made written enquiries of the Council and considered its response. I shared my draft decision with Mr and Mrs B and the Council and considered their comments on it.

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What I found

  1. Certain matters, for example noise, odour or light can be statutory nuisances if they are significant enough. (Environmental Protection Act 1990, section 79) It is for councils to judge whether something amounts to a statutory nuisance. If a council finds a statutory nuisance, it must serve a notice telling the person responsible to abate the nuisance. (Environmental Protection Act 1990, section 80) An abatement notice’s recipient can appeal to the magistrates’ court, which can quash the notice. So councils need strong evidence to decide there is a statutory nuisance.
  2. If the Council properly reaches a decision that something is not a statutory nuisance, the Ombudsman cannot criticise that decision even if people disagree with it, as paragraph 3 explained. So I have considered how the Council dealt with this. It is not for me to decide if there is a statutory nuisance.

The problem near Mr and Mrs B’s home

  1. The complaint concerns some plant near Mr and Mrs B’s home. To avoid identifying anyone, I shall not give more details of the plant’s purpose or location. Mr and Mrs B state noise, light and odour from the plant cause problems for their household.

July 2018

  1. Mr and Mrs B state they first contacted the Council about the matter, by email and registered post, in July 2018. The Council says it has no record of such contact. I have not seen evidence of the email or of a registered letter being received. I asked the Council to check emails received from Mr and Mrs B in July and August 2018. The Council sent me the emails it reports receiving, which all concerned other matters and did not mention the alleged nuisance.
  2. Without evidence of the Council having contact from Mr and Mrs B in July 2016, I do not find fault in the Council’s not responding then about the alleged nuisance.

September 2018

  1. On 17 September 2018, Mr and Mrs B wrote to the Council saying the plant’s noise and light caused problems, which they wanted to report to the Council’s environmental health team. The Council’s complaints team replied on 19 September, asking Mr and Mrs B to detail the plant’s location and saying once they did so, it would forward the matter to the environmental health team to investigate the noise and light.
  2. Mr and Mrs B sent the information the next day. The Council accepts it did not forward the matter to the environmental health section, which therefore remained unaware of the matter. The Council says this was because:

‘Upon receipt of the plan identifying the site it was considered the most appropriate use of resources for a site visit to be carried out by a planning officer to determine whether a breach of planning had occurred prior to involving further Council resources. The Council regrets that [Mrs B] was not informed of this.’

  1. I have considered the Council’s reasoning. The Council’s role in dealing with potential statutory nuisances is quite separate from its planning control role. Planning enforcement action is discretionary whereas, if the Council finds a statutory nuisance, it must serve an abatement notice immediately or, for noise nuisance, within a maximum of seven days.
  2. Moreover, if the Council had found a breach of planning control, that would not itself have enabled the Council to decide whether a statutory nuisance existed, let alone have abated any nuisance. Something might breach planning control without being a statutory nuisance, or be a statutory nuisance without breaching planning control, or be both or neither.
  3. So I do not agree the Council could properly fail to act on a reported possible statutory nuisance while it considered other matters related to the plant. That approach runs the risk that, if there is a statutory nuisance, people will continue suffering it, potentially for a significant period, after alerting the Council. Therefore I consider the Council was at fault for not referring the matter to its environmental health team for consideration in September 2018.
  4. The Council was also at fault, as it accepts, for not telling Mr and Mrs B that it had not done what it previously undertook to do.

October 2018

  1. Understandably, Mr and Mrs B initially thought the Council’s environmental health team was considering the matter after they provided the requested information on 20 September. On 16 October 2018, having heard nothing more, Mr and Mrs B reported the alleged nuisance to the environmental health team using the relevant section of the Council’s website.
  2. On 19 October the Council’s complaints section sent Mr and Mrs B a link to the webpage for reporting nuisance. Mr and Mrs B say they did not do anything more, assuming the complaints section did not realise they had recently given details via the website. That is understandable. I do not consider the Council’s reference to the matter on 19 October especially important for the purposes of my investigation.
  3. Mr and Mrs B state they heard nothing from the environmental health team apart from an email acknowledgement on 16 October. Responding to my enquiries, the Council says its environmental health team sent Mrs B a letter and blank diary sheets on 17 October. I have seen copies, which the Council states its systems show were produced and posted on 17 October. The letter was addressed correctly. This looks like a standard letter and diary sheet that I understand the Council would send initially for every investigation where it would want such evidence of a possible statutory nuisance. This is a normal first step for many councils.
  4. I cannot resolve why Mrs B seemingly did not receive that letter. Further investigation is unlikely to be fruitful as I do not reasonably expect I could find evidence showing, on balance, whether an item was put in the post or went astray in the post or something else happened. There is insufficient evidence for me to conclude Mrs B not having the letter and diary sheets resulted from any fault by the Council.

The effect of the Council’s fault

  1. The only fault I found was the Council’s failure to pass information to its environmental health team in September 2018. Obviously, the lack of action caused Mr and Mrs B some frustration. Mr and Mrs B also had to report the problem themselves online although that would not be especially onerous and is what most people are expected to do.
  2. If the fault had not happened and the environmental health team had known of the matter around 20 September 2018, it is reasonable to assume the Council would have sent a letter and diary sheets then. It is possible that whatever problem prevented Mr and Mrs B having the letter and diary sheets in October would not have happened in September, so Mr and Mrs B might have started keeping diaries and might have returned them.
  3. However, all the points in the preceding paragraph are necessarily speculative. I cannot be confident on balance that those events would have happened. Also, importantly, we do not know whether the Council would have assessed the noise, light or odour as being a statutory nuisance. So I cannot conclude, on balance, that, but for the Council’s fault, the Council would have decided there was any nuisance it should take further action on, let alone that the problems would have abated.
  4. Nevertheless, the Council’s fault leaves Mr and Mrs B with justified uncertainty about whether a quicker or better outcome might have been possible and avoidable frustration at the Council not dealing with their report sooner. Those are injustices, meriting an apology and the Council reviewing its actions here.

Agreed action

  1. At my recommendation, the Council has agreed to review what happened here and make any necessary changes to procedures or staff training to minimise the chances of the identified faults recurring. In particular, the Council should ensure that the possible existence of a planning breach or other issue does not prevent prompt reaction to reports of a possible statutory nuisance. The Council should complete this within three months of today.
  2. I also recommended the Council should apologise to Mr and Mrs B. After I issued a draft of this decision, Mr and Mrs B stated they no longer wished to pursue the complaint. As I had already issued a draft decision and as my recommendation b) above might bring about an improvement that could benefit other members of the public, we considered we should continue to try to secure that improvement. The Council agreed that recommendation. In the circumstances, we no longer considered it necessary to ask the Council to apologise.

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Final decision

  1. I have completed my investigation because the Council’s agreement to my recommendations above will resolve matters satisfactorily in the circumstances.

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Investigator's decision on behalf of the Ombudsman

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