Summary: Mr D complained the Council has failed to take appropriate action when he raised concerns about air and noise pollution from idling buses near to where he lives. We find the Council was at fault as it failed to consider its duties under the Environmental Protection Act 1990. The Council has agreed to our recommendations to address Mr D’s injustice.

The complaint

1. Mr D complained the Council has failed to take appropriate action when he raised concerns about noise and air pollution from idling buses near to where he lives. He says he cannot sit outside on his balcony or open his windows because of the fumes and noise from the buses.

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What I have investigated

2. I have investigated Mr D’s complaints from January 2020 onwards. I have not investigated Mr D’s complaint before January 2020 for the reasons explained at the end of this statement.

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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 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)
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 considered information Mr D submitted with his complaint. I made written enquiries of the Council and considered information it sent in response.
7. Mr D 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 nuisances

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. 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.

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.
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.

What happened

13. This chronology includes key events in this case and does not cover everything that happened.
14. Mr D lives near to a timing point bus stop. A timing point is a designated stop where buses are registered to depart from at a specific time. Mr D has been raising issues with the Council since April 2019 about the noise and air pollution from idling buses.
15. Mr D emailed the Council on 28 January 2020 and said he wanted it to move the bus stop. He said he had been in contact with the bus companies, but they would not help. He said the noise from the bus engines was unacceptable and no one had visited to see how it had affected him.
16. The Council responded and said it would forward his concerns to the organisation (Organisation A) that is responsible for the coordination of public transport in the area. It also asked for the bus stop number and location.
17. Mr D replied on the same day and confirmed which stop it was. He also said Organisation A would just pass the information to the bus companies, and it would achieve nothing. He sent a further email the following day and said it was the Council’s responsibility to do something. The Council did not respond.
18. Mr D emailed the Council on 2 March 2021 and complained about idling buses. The Council responded on the same day and said it and Organisation A had previously communicated with him about the issues. It said Organisation A had asked the bus drivers to refrain from idling their engines if they were at the bus stop for any length of time. It said it planned to install anti-idling signs at the bus stop but the budget for the work had been delayed.
19. Mr D responded and said Organisation A was not dealing with the issues. He raised a formal complaint on 8 March. He said he could not enjoy sitting on his balcony because of the noise and pollution from the idling buses. The Council acknowledged his complaint on 10 March.
20. The Council emailed Mr D on 8 April. It said it would discuss the issues with Organisation A and respond by the end of April. Mr D sent two further emails and the said the noise and air pollution was ongoing.
21. The Council issued a further response on 4 May and said it had identified one potential location to move the timing point to. It said it would investigate whether it was feasible. It also said buses using the stop have stop-start technology, so the engines automatically cut off when the bus is stationary for any length of time. Where a bus does not cut off automatically, it is down to the driver to turn off the engine. It said the bus companies had instructed their drivers to turn off their engines when waiting at timing points. Finally, it said it could install an anti-idling sign which would be enforceable through a fixed penalty notice and a fine of £50. However, it had not implemented the sign because the intention was to get compliance by asking the drivers to switch off their engines.
22. Mr D emailed the Council with further information about improving air quality. He also raised a further issue about noise coming from a local working men’s club.
23. The Council updated Mr D on 2 July and explained it was still investigating the issue, and it would update him in the next few weeks. It also told him to email its environmental regulation team about the noise from the working men’s club.
24. Mr D sent the Council further emails on 3 and 20 July. He said it was ignoring his emails and not resolving the issues.
25. The Council emailed Mr D on 10 September. It said it had completed its investigation and there was no better location to move the timing point to. It said enforcing the anti-idling signs would be difficult because it relies on enforcement officers passing through the area and this mainly occurred at peak times when buses were not waiting. It said it would speak to the bus companies and Organisation A to discuss the matter further. In the meantime, Mr D should continue to report the issues to Organisation A.
26. Mr D remained dissatisfied with the Council’s response and referred his complaint to the Ombudsman.

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Analysis

27. The Council failed to respond to Mr D’s email of 29 January 2020. This is fault. Mr D explained that he had been in contact with Organisation A and the bus companies, but nothing had been resolved. He asked the Council to intervene, but it failed to tell him if it intended to act. This caused him frustration.
28. The Council also told Mr D in its email of 2 July 2021 that it would update him in a few weeks. It did not update him until 10 September 2021. This is fault. The Council should have provided regular updates to Mr D, even it was to tell him its investigation was still ongoing.
29. Mr D asked the Council to consider moving the timing point or the bus stop altogether. The Council investigated in detail whether it was possible to move the timing point to another location. It looked at road safety and traffic management implications. However, it could not find a better location. I appreciate Mr D strongly disagrees with this, but the Council considered all the relevant factors before making its decision. It was not at fault.
30. The Council said in its email of 10 September that it would speak to the bus companies and Organisation A. It is not clear if the discussions have taken place, and there is no evidence it has written to Mr D to update him further. The Council should therefore write to Mr D and update him.
31. When Mr D complained about pollution, the Council’s air quality team carried out a one-off reading at the roadside. This is where pollutants are likely to be highest. The team compared this to earlier readings at nearby sites, and it was found to be within the legal limits. It therefore decided to take no further action. I am satisfied the Council investigated the issue of pollution and so it was not at fault. The fumes from the bus engines do not represent a potential statutory nuisance under the Environmental Protection Act 1990 because they are not coming from a premises.
32. Mr D also complained about loud noises from the bus engines. The Council’s environmental protection department did contact Mr D in 2019 to discuss the issues further. He did not respond, so it closed the case. However, when Mr D contacted the Council again in 2021, it failed to consider its duties under the Environmental Protection Act 1990. This is fault.
33. The Council says the focus of Mr D’s complaint was the use of the bus stop as a timing point. It also says the traffic noise levels on the road where Mr D lives does not represent an area of concern.
34. I do not accept the focus of the complaint was only the moving of the bus stop. Mr D repeatedly complained about noise. His concern was not just about traffic noise levels but also about loud noises from the idling bus engines disrupting him when he was in his flat.
35. The Council’s faults have caused Mr D an injustice because he is now left with uncertainty about whether a different outcome could have been reached. The Council needs to remedy this injustice.

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Agreed action

36. To address the injustice caused by fault, by 31 March 2022 the Council has agreed to:

• Apologise to Mr D.
• Pay Mr D £150 for the frustration caused to him.
• Contact Mr D and start an investigation under the Environmental Protection Act 1990 into whether the noise from the idling bus engines represents a statutory nuisance.
• Update Mr D on the result of its discussions with Organisation A and the bus companies.

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Final decision

37. I have found fault by the Council, which caused Mr D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

38. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Mr D was aware of the issues in April 2019 but did not refer his complaint to the Ombudsman until February 2021. I have exercised discretion to investigate Mr D’s complaint from January 2020 because of the Council’s failure to respond to his emails. However, I am satisfied Mr D could have bought the earlier issues before January 2020 to the Ombudsman much sooner and so I have not exercised discretion to investigate them.

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Investigator's decision on behalf of the Ombudsman