Birmingham City Council (20 008 213)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 13 Jul 2021

The Ombudsman's final decision:

Summary: There is no fault in how the Council decided the noise from a Waste Transfer Facility was not a statutory nuisance. Its failure to require its contractor to adhere to permit conditions about hours of operation is fault. The Council has agreed to apologise, pay Mr and Mrs X £500 and require its contractor to work within permitted hours.

The complaint

  1. Mr and Mrs X complain the Council has failed to properly investigate and take action about noise from a nearby recycling facility.
  2. Mr and Mrs X say the noise impacts their sleep and they can’t open the windows to ventilate their house, which is necessary for managing Mr X’s health conditions.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  4. 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 spoke to Mr and Mrs X about the complaint.
  2. I made written enquiries of the Council and considered its response along with relevant law and guidance.
  3. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
  4. Mr and Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Statutory nuisances

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
  2. 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
  3. 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.
  4. 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.
  5. 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.
  6. 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.

What happened

  1. Veolia manages a Waste Transfer Facility (the Site) on behalf of the Council. The Council owns the Site, which is less than 500 metres from Mr and Mrs X’s home.
  2. Mr X first complained to the Council about noise from the Site in 2018. The noise he complained of included loud beeping and crashing sounds during the day and at night.
  3. The Council investigated whether the noise from the Site was a statutory nuisance. The investigation included:
    • Two periods in 2019 when the Council installed Noise Monitoring Equipment in Mr and Mrs X’s home
    • Giving Mr and Mrs X access to the Council’s Rapid Response out of hours service for several periods between July 2018 and November 2019
    • Liaising with the Site and other nearby businesses to identify the source and cause of the noise.
  4. When Veolia listened to recordings of the noise, it identified it as sounding like the reversing alarms on its vehicles.
  5. In November 2019, the Council decided the noise did not happen regularly enough to be a statutory nuisance.

My findings

Noise

  1. The Council found the noise “does not occur with enough regularity to be a statutory noise nuisance”. This is a matter of professional judgement. The Ombudsman cannot question it just because someone disagrees or because we might have made a different decision. We can only question the merits of such a decision where it is affected by fault.
  2. Mr X completed diary sheets to record the frequency, time, and duration of the noise. In response to my enquiries, the Council said it no longer has these in its records. This is poor practice.
  3. However, it was based on these diary sheets that the Council decided to install Noise Monitoring Equipment and add Mr and Mrs X to its Rapid Response service. Therefore, the Council’s failure to keep these records did not prevent it investigating the complaint.
  4. I find no fault with how the Council decided the noise from Veolia was not a statutory nuisance.
  5. The Council is also the owner of the Site. Veolia provides waste management services on the Council’s behalf under a contract. This gives the Council further responsibilities and powers.
  6. The Environmental Health Officer who investigated the noise sent an internal email to the team responsible for dealing with the contract in November 2019. In it, the Officer said:

“as [the Council] has a contract with Veolia we believe the best way forward is for yourselves to liaise with Veolia and the complainant to resolve the issues.”

  1. Since the Council cannot take enforcement action against itself, the only way it could deal with the matter was through its role as landowner and contract holder.
  2. In response to my enquiries, Veolia said that although the Site’s hours of operation on weekdays are 5am to 11pm, “following work with [the Council] Veolia have limited our operations to ensure they are acting as a good neighbour. Loading operations under normal circumstances are limited to 0700-2200”.
  3. This shows the Council worked with its contractor to minimise the impact of the Site on neighbouring amenity despite not finding a statutory nuisance.

Hours of operation

  1. The Site is subject to a permit from the Environment Agency.
  2. The permit, now under the authority of the Environment Agency, was first issued in 1993. It says the Site’s hours of operation will be:
    • 24 hours a day Monday to Friday
    • 5.30am to 6.30pm Saturday and Sunday
  3. In response to my enquiries, the Council said the site currently operates from 8am to 10pm on Sundays, “with minimal loading after [8pm]”. This is outside the hours in the permit. Mr X also reports activity on weekends after 6.30pm.
  4. The conditions of the permit are for the Environment Agency to enforce. The Council’s records show that an Environmental Health Officer contacted the Environment Agency in November 2019 to “strongly recommend that the EA consider the permit and take whatever action it may.”
  5. However, the Ombudsman expects the Council to hold itself to a high standard and to follow requirements, regardless of whether the Environment Agency enforces them. Allowing its contractor to work outside permitted hours is fault.
  6. This means Mr and Mrs X are exposed to noise at times when they would not be, were Veolia to meet the requirements of the permit. Mr X has health conditions for which his doctor recommends keeping his home well ventilated. Because of the noise, Mr and Mrs X say they cannot keep their windows open to air their home. This is an injustice to Mr and Mrs X.

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Agreed action

  1. To remedy the injustice to Mr and Mrs X from the faults I have identified, the Council has agreed to:
    • apologise to Mr and Mrs X in writing.
    • pay Mr and Mrs X £500 in recognition of the impact on their amenity of Veolia working outside the hours allowed by the permit.
  2. The Council should take this action within four weeks of my final decision.
  3. The Council should also:
    • require Veolia to adhere to the hours allowed by the permit.
  4. The Council should tell the Ombudsman about action it has taken within eight weeks of my final decision.

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Final decision

  1. I have completed my investigation. There is some fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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