Summary: We will not investigate this complaint about how the Council has dealt with complaints about noise and odours. The complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is made too late, there is no evidence of fault by the Council and the complainants can seek a remedy in court.

The complaint

1. The complainants, who I refer to here as Mr and Mrs B, have complained the Council has not prevented noise and odours from a works near their home. They have been raising these issues since 2006 but say the situation has not improved.

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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. (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 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)
6. 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

7. I considered information provided by Mr and Mrs B and the Council. I have also considered our Assessment Code.

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What I found

Background – statutory nuisance

8. The Council has a duty under the Environmental Protection Act 1990 to investigate complaints of nuisance such as noise or odours. However, it can only take action to prevent the nuisance if it decides there is a ‘statutory nuisance’.
9. A statutory nuisance is one which unreasonably and substantially interferes with the use or enjoyment of a home or injures, or is likely to injure, health.
10. A trained environmental health officer (EHO) must decide if a statutory nuisance exists. This is a subjective decision based on the particular circumstances.
11. Even if an EHO decides no statutory nuisance exists, the Environmental Protection Act 1990 allows members of the public to complain directly to a magistrates’ court.

Assessment

12. Mr and Mrs B complained to us some 15 years after they first complained to the Council. I have seen no reason the restriction I describe in paragraph 3 should not apply.
13. Even if the time limit did not apply, it is evident the Council has responded repeatedly to Mr and Mrs B’s concerns. However, following investigation its EHOs have decided in each case no statutory nuisance exists. These are decisions for the Council to make and I have seen nothing to suggest they have been affected by fault. As no statutory nuisance exists, the Council cannot take action to prevent the nuisance.
14. Mr and Mrs B also have a remedy in court and I see no reason they should not be expected to pursue this.

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Final decision

15. We will not investigate Mr and Mrs B’s complaint for the reasons given in paragraphs 12, 13 and 14.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman