Summary: Mr C complained the Council failed to properly investigate and take appropriate action in response to his reports of noise and fumes from a nearby electroplating business. Mr C says he and his wife suffer from excessive noise and fumes in their home which disturbs their sleep and is affecting their health. We have found no evidence of fault.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council has failed to properly investigate and take appropriate action in response to his reports from October 2018 of noise and fumes from a nearby electroplating business. In particular, Mr C says the case officer was biased in favour of the business from the outset.
2. Mr C says because of the Council’s fault, he and his wife suffer from excessive noise and fumes in their home which disturbs their sleep and is affecting their health.

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The Ombudsman’s role and powers

3. 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)
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. 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 read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
8. 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

9. 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.

10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

Key events

17. Mr C emailed the Council in October 2018 about a humming noise and smell from a nearby electroplating business. The Council telephoned Mr C and noted the main issue was the noise which Mr C explained was keeping him awake at night. The Council arranged a visit to install noise monitoring equipment.
18. The Council installed noise monitoring equipment at Mr C’s property in November for one week. Mr C also kept a log of noise that woke him up during this period and described the smell as ‘sulphur fumes’ and ‘battery acid’.
19. The Council visited Mr and Mrs C at the end of November to discuss the outcome of the noise monitoring. The Council confirmed the sound level from the plant during the week was 35 A-weighted decibels (dBA) with the window open and 26 dBA with the window closed. This dropped to 26dBA and 21dBA over the weekend. The Council explained the noise levels during the week were in a reasonable range as stated in British Standard guidance for the control of noise in and around buildings (BS 8233) and the noise levels over the weekend were good. The Council confirmed it did not propose formal action against the company but it would contact the company on an informal basis.
20. The Council met with representatives of the company in early December and noted a combustion fan was making excess noise. The company agreed to replace the fan. The Council also raised the issue of the acidic smell being reported. The company inspected the relevant equipment and repaired a blockage that was found and made changes to water treatment processes.
21. The Council visited the site again in December and completed noise monitoring inside and recorded 88.3 dBA and noted there was no smell. The Council noted a new fan had been ordered and was due shortly. The fan was replaced in early January 2019.
22. The Council visited the site in January after the replacement of the fan and completed further noise monitoring inside which recorded a reduction to 79.2 dBA. It was not possible to complete noise monitoring outside due to poor weather conditions. The Council provided an update to Mr C in early February.
23. A company appointed noise consultant completed a noise survey in March.
24. The Council provided a further update to Mr C in May and attended the site twice in June and noted there was no smell.
25. The Council contacted Mr C in early July to confirm his attendance at a site meeting and consent to further noise monitoring at his property. Mr C confirmed he would attend the site meeting but did not want noise monitoring equipment installed again at his property.
26. The Council attended the site with Mr C in July. The Council noted low level odour opposite the site and completed noise monitoring. The Council noted passing traffic made it difficult to gain clear noise readings but that there was a background hum both from the company site and distant road traffic which was not considered to be excessive. The Council noted the main source of noise from the site was to the left hand side of the middle bay.
27. The Council visited the site again at the end of July to complete further noise monitoring but the roof fans were turned off and passing traffic made isolating factory noise difficult. The Council arranged a further visit earlier in the morning.
28. 
    The Council revisited the site in August and started noise monitoring from 5.50am. The Council monitored as all plant was off and then as each fan was turned on individually. This identified two fans which were louder and found a high-pitched squealing noise from one particular fan. There were no odours present during the visit.
29. The Council met with the company in September. It was noted that the largest increase happened when a particular fan was in use which was the exhaust fan for cooling air and was currently turned off. The Council discussed adjustments to the fans and cooler exhaust. There was no odour present at the visit.
30. The company confirmed in October it would carry out works to the relevant fans and intake exhaust ducts. The Council provided an update to Mr C in November. The works were completed in early December.
31. The Council contacted Mr C in early December to arrange further noise monitoring at his property. Mr C disputed there had been any works as there had been no improvement in the noise he experienced. Mr C refused further noise monitoring at his property.
32. The Council visited the site in December to view the completed works. The Council contacted Mr C to offer a site meeting and noise mediator. Mr C refused this offer.
33. The Council completed noise monitoring at the site in December. The Council found the external levels were 51.5 dBA which compared to 54.8 dBA at the July visit. The Council was to complete further monitoring in the New Year as the factory was closing for two weeks over the Christmas period. The Council provided an update to Mr C.
34. The Council has provided good evidence it responded to Mr C’s reports and has taken reasonable steps to investigate whether a statutory nuisance exists or is likely to exist. The Council’s investigations which have included noise monitoring at Mr C’s property and visits and monitoring at the site over a period of time have not established a statutory nuisance from noise or odour. Nevertheless, the Council has continued to work with the site owner on an informal basis to try and achieve an improvement in the noise and odour experienced by Mr C. The Council has kept Mr C informed of these efforts. I see no fault here. However, I would remind the Council that the Ombudsman considers it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the Environmental Act in these circumstances.

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Final decision

35. I have completed my investigation as I have found no evidence of fault.

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Investigator's decision on behalf of the Ombudsman