Summary: We will not investigate this complaint about nuisance, including noise and pollution, from an industrial site near the complainant’s home. We are unlikely to find fault in how the Council has considered the complainant’s concerns. The complainant can seek a remedy in court if she believes a statutory nuisance exists.

The complaint

1. The complainant, who I refer to here as Ms B, has complained the Council has not taken action to deal with nuisance from an industrial site near her home. She says she is disturbed by noise from the site throughout the day and night. Vehicles on site also cause pollution. Ms B says her neighbours have also complained about these issues since 2018.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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’.
6. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
7. 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 that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

8. I have considered what Ms B said in her complaint. The Council also provided background information including its responses to Ms B’s complaint. I have also seen planning information about the site on the Council’s website. Ms B commented on a draft before I made this decision.

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What I found

9. Ms B has complained to the Council that she is disturbed by noise, including from heavy goods vehicles and fork lift trucks, from an industrial site behind her home. She says this happens every day from 7am to 7:30pm.
10. In essence there in two ways in which it is possible for a council to control issues such those of concern to Ms B:
• if there is a breach of a planning condition attached to any use of a site, a council can consider if it is expedient to take enforcement action; or
• if a council decides there is a statutory nuisance under the Environmental Protection Act 1990, it must take action to abate the nuisance.
11. Generally councils should not use planning conditions to address matters covered by other legislation. For example, a council should not use planning conditions to limit noise levels because noise nuisance is covered by the Environmental Protection Act 1990.
12. Conditions have to relate to the development given planning permission and not existing development.
13. There are no planning conditions relating to the hours of use of the site or the number and types of vehicle movements. While Ms B believes the Council should have imposed such conditions when it granted permission for a new building on the site in 2017, this did not happen. We will not now investigate how the Council dealt with the application in 2017. In any case, it is doubtful the Council could reasonably have imposed any such conditions as the main use of the site has continued for many years.
14. I am satisfied the Council has properly considered if a statutory nuisance exists. This is something a qualified Environmental Health Officer must assess. The Council has decided no statutory nuisance exists so there is no formal action it can take. It has had informal discussions with the site owner which has resulted in some changes to the operations on site.
15. Ms B also has a right to seek her own remedy in court, as do her neighbours, regardless of the Council’s decision there is no statutory nuisance. Under section 82 of the Environmental Protection Act 1990, it is open to members of the public to bring their own case to a magistrates’ court and ask it to serve an abatement notice. In such cases, it is for the court, and not the council, to decide if a statutory nuisance exists and require any action to abate the nuisance. This is not something we can do.

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Final decision

16. I have decided we will not investigate this complaint. This is because we are unlikely to find evidence of fault by the Council. Regardless of the Council’s view, Ms B can also seek her own remedy on court if she believes a statutory nuisance exists.

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Investigator's decision on behalf of the Ombudsman