Summary: Mr B complains about the Council’s handling of his noise and pollution complaints about an industrial premises near his home. The Council has been unable to gather evidence to assess the impact of the disturbance on Mr B. The Ombudsman cannot make a finding of fault when Mr B has declined to engage in the Council’s usual procedure. The Council’s communication with Mr B could have been clearer but this has not caused significant injustice to warrant a personal remedy. The Council has agreed to review its procedure to ensure this accurately reflects the statutory guidance for Environment Agency permitted sites.

The complaint

1. The complainant, whom I have called Mr B, complains about the Council’s handling of noise and pollution complaints he has made about an industrial premises near his home. Mr B says the Council has not properly investigate the statutory nuisance complaints he has made over several years and has failed to take appropriate steps to address the issues with the company involved. Mr B says the noise nuisance in particular has a significant impact on his mental wellbeing and has prevented him from enjoying his home. Mr B also says the Council has not dealt with his complaints about its service in line with its procedure.

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What I have investigated

2. I have not investigated matters that occurred before the end of March 2019. Although Mr B and the Council confirm concerns have been raised about the industrial premises since 2014, neither party has provided sufficient information for me to investigate these issues further. I am also not persuaded there are good reasons why Mr B was not able to bring these earlier concerns to the Ombudsman sooner that mean I should exercise discretion to consider these matters now.

The Ombudsman’s role and powers

3. 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)
4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

6. I have spoken to Mr B and considered the information he has provided in support of his complaint.
7. I have considered the information the Council has provided in response to my enquiries.
8. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory Nuisance

9. The Environmental Protection Act 1990 states that smoke, gases/fumes, dust, steam, odour, deposits or noise emitted from premises, including land, can be a statutory nuisance. If someone living in a council’s area complains about a statutory nuisance, the council must ‘take such steps as are reasonably practicable to investigate the complaint’.
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, 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.
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.
14. If a council is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an Abatement Notice on the person responsible for the nuisance, or on the owner or occupier. The Council can prosecute someone if they fail to comply with an Abatement Notice.
15. Department for Environment, Food and Rural Affairs (DEFRA) guidance (The Environmental Permitting Regulations) refer specifically to sites which are subject to Environment Agency (EA) permits. The guidance confirms the Council’s duties under the Environmental Protection Act. However, it states where the same event might be prosecuted by the EA and a council, the council must obtain the Secretary of State’s consent before they prosecute. The guidance indicates the aim of this is to avoid a site operator being prosecuted by two separate organisations over the same event.
16. The DEFRA guidance makes it clear that councils are only required to seek consent from the Secretary of State before prosecuting. It states councils do not need consent to exercise their functions under the Environmental Protection Act up to and including serving an Abatement Notice.
17. The guidance goes on to provide detailed guidance. It suggests that councils liaise with the EA to confirm what a permit covers when deciding if consent to prosecute is required.

Council’s procedure

18. The Council’s procedure for noise complaints suggests people should try to resolve the problem with whoever is responsible if possible.
19. The procedure goes on to state the first step in the Council’s investigation into any noise complaint is to ask the complainant to complete diary logs to record the dates and times of the problem. The Council says it is unlikely to proceed with its investigation if it does not receive completed diary sheets.
20. The Council will send an officer to visit the complainant’s property to assess the disturbance if this occurs within normal working hours. It will seek to install recording equipment in the complainant’s property if the disturbance occurs outside of normal working hours.

What happened

21. Mr B’s home is situated to the east of an industrial premises, owned by Company X. At the end of March 2019, Mr B was copied into email correspondence between his neighbour and the Council about the noise disturbance caused by Company X. Mr B’s email said he had regularly complained about Company X since it moved to the site in the 1990s. Mr B said the Council had repeatedly failed to make Company X comply with planning conditions or the terms of its EA permit. Mr B’s concerns related to additional buildings being added to the site and the inclusion of additional doors to the main site building which were left open all day and increased the level of noise disturbance.
22. The Council responded to Mr B’s email on 16 April 2019. It apologised for the delay in replying and explained that it was in the process of investigating concerns about the dust and noise nuisance. The Council said it wanted to visit properties affected and asked Mr B if he would be willing to allow an officer to attend his home to assess the impact of the disturbance.
23. Mr B replied on 26 April 2019 and declined its offer to visit his property to assess the impact. He felt there was nothing to gain from a visit unless the Council was willing to challenge Company X and make it comply with planning regulations and its EA permit. Mr B wrote to the Council again on 17 May 2019 as he had not received a response to his earlier email. Mr B asked the Council if it would consider providing a refund of council tax to him as he was no longer able to enjoy use of his garden because of the noise disturbance caused by Company X.
24. The Council responded the same day and noted Mr B did not want it to visit him at his property to assess the impact of the disturbance. The Council confirmed it was still investigating the concerns raised in liaison with other agencies. The Council explained it was keen to reach a suitable outcome for all parties, but this was likely to take some time given the legislation and regulations involved. The Council offered to provide Mr B with updates when it had made further progress.
25. Between the end of April and October 2019, the Council conducted visits to the area around Company’s X premises, including the street where Mr B lives. The Council did not observe disturbances that provided sufficient evidence of a statutory noise nuisance. The Council officer noted observing dust on some vehicles but could not establish the origins of the dust or how long it had been there. The Council also met with Company X, the County Council (as the Waste Planning Authority) and the Environment Agency to try and resolve disturbance issues raised by Mr B and other residents in the area.
26. At the end of September 2019, the Council wrote to Mr B and other complainants in the area to update on the progress of interactions between the agencies involved and Company X. The Council explained it was working to resolve the issues residents had highlighted about Company X. The letter included contact details for the relevant agencies involved and explained the Council would continue to investigate statutory nuisance complaints as they were received. The Council also advised residents that they could, under section 82 of the Environment Protection Act 1990, pursue their own action through the courts for statutory nuisances.

Mr B’s complaints

27. Mr B made his first complaint under stage one of the Council’s procedure on 22 August 2019. He was unhappy with the Council’s lack of action to address his concerns about Company X. He felt the disturbance from the noise created by Company X infringed on his human rights.
28. The Council responded to Mr B’s complaint on 27 August 2019. It provided a copy of a letter the Council was intending to send to all residents that had complained about the noise disturbance caused by Company X. The Council told Mr B that while it welcomed complaints about the site, it would need Secretary of State permission to take formal action. The Council said it was unlikely it would be granted permission by the Secretary of State because the site was regulated by the Environment Agency. The Council told Mr B it was working with the County Council and the Environment Agency to try and resolve the concerns raised.
29. Mr B responded the same day and asked the Council to escalate his complaint to stage two of its procedure. Mr B questioned the Council’s view that it could not take formal action against Company X because the Secretary of State was unlikely to allow this. Mr B reiterated that he had made valid complaints about the noise and dust caused by Company X which the Council should investigate. Mr B said no planning permission or Environment Agency permit allowed Company X to cause a nuisance.
30. The Council acknowledged receipt of Mr B’s stage two complaint on 4 September 2019. Mr B wrote a further response on the same day to provide further comments about his concerns. He said he believed the Council had the power to take action against Company X and should have resolved the problems years ago. Mr B approached the Ombudsman shortly after making his stage two complaint because he felt the Council was unlikely to respond.
31. The Council responded to Mr B’s stage two complaint on 23 September 2019. The Council explained that while its investigations had not established a statutory nuisance had occurred, it was working in partnership with the County Council and Environment Agency to resolve the concerns raised by Mr B and other residents. The Council told Mr B it would be keeping him and other residents informed of its joint progress with the other involved agencies.

Was there fault causing injustice?

32. The Council has sought to investigate the complaints Mr B had made about noise nuisance by Company X in line with its procedure. It invited Mr B to provide information from diary logs to help it assess the impact of the noise disturbance. The Council also made two offers to visit Mr B’s home to assess the impact of the noise within the property. It was Mr B’s choice not to provide completed diary logs and to decline the Council’s offers to visit. I cannot make a finding of fault against the Council on this basis.
33. Despite a lack of the information the Council would usually gather in statutory nuisance investigations, it has tried to engage informally with Company X and other relevant agencies to help resolve the issues Mr B and other residents have raised. This action is in line with the guidance for councils in the Environment Protection Act.
34. There is specific government guidance relating to sites which operate under EA permits. It says that (to prevent prosecution by two regulators for the same issue), a council may not prosecute a site owner for the failure to comply with an abatement notice without first getting the consent of the Secretary of State. However, the guidance makes it clear that councils do not need consent to investigate and are not prevented from carrying out their duties under the Environmental Protection Act. They are only required to seek consent should they later be considering prosecution.
35. I recognise the Council may seek information from the EA about the operation of Company X when considering complaints from the public. Information about adherence to permit conditions may be relevant evidence for councils to consider when deciding if there is a statutory nuisance.
36. However, the law requires councils to take reasonable steps to investigate complaints made about potential statutory nuisances. If a nuisance is witnessed councils have a duty to issue an Abatement Notice. So, the Council’s response to Mr B that it was unlikely to gain consent to take formal action was incorrect as it had the ability to go as far as issuing an Abatement Notice, which constitutes the first stage of statutory action.
37. Although there was fault, the Council has not established there is sufficient evidence of a statutory nuisance to issue an Abatement Notice in this case. The Council’s fault has caused Mr B irritation and frustration, but it did not alter the outcome nor the informal action the Council continues to take to address the issues highlighted about Company X by Mr B and other residents. My recommendation below seeks to address this fault to avoid recurrence.
38. The Council has responded to Mr B’s complaints about its service at both stages of its procedure. Mr B expected a manager or director who had had no previous involvement with the case to deal with his stage two complaint. The Council’s complaint procedure does not specify this, only that a senior manager can be asked to consider and respond to an escalated complaint. The relevant manager within the team Mr B was dealing with responded to his stage two complaint in line with the Council’s procedure. There was no fault in the Council’s handling of Mr B’s service complaints.

Agreed action

39. The Council has agreed to review its guidance to ensure officers are aware they must take reasonable steps to investigate statutory nuisance complaints in line with the guidance issued by DEFRA for EA permitted sites.
40. The Council should complete the above review within one month of my final decision and provide evidence to the Ombudsman to show it has completed the above recommendation within six weeks of the date of my final decision.

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Final decision

41. I have completed my investigation with a finding of fault in the Council’s procedure for handling statutory nuisance complaints about sites subject to EA permits. The Council has agreed to review the procedure to ensure it reflects the DEFRA guidance. However, this fault has not caused Mr B significant injustice to warrant a personal remedy.

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Investigator's decision on behalf of the Ombudsman