Summary: We have not investigated this complaint, about alleged nuisances arising from the operations of a COVID-19 testing site. This is because the magistrates’ court is better placed to consider the matter.

The complaint

1. I will refer to the complainant as Mr W.
2. Mr W complains about noise, light and odour nuisance caused by the operations of a COVID-19 test centre next to his home.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’.
4. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I reviewed Mr W’s correspondence with the Council.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Mr W lives next to a set of buildings owned by the Council, which it has historically licensed for use as a community centre. Mr W has made several complaints to us previously about nuisance he says he suffers because of the centre’s operations.
8. In 2020, the Council licensed the site to the Government’s Department for Health and Social Care (DHSC) for use as a COVID-19 testing centre.
9. Since then, Mr W has raised several new nuisance complaints with the Council’s about the test centre’s operations. These include:
• noise from power generators, delivery vehicles, and staff members talking and using the welfare facilities near the boundary with his property;
• odour from the staff welfare facilities’ sewage system; and
• light from the centre’s lighting system.
10. In December 2020, the Council wrote to Mr W. It said it had closed the site temporarily in November to undertake works to address its impact. These works included:
• moving the generators to a different part of the site;
• replacing them with quieter generators which shut down overnight;
• sound-proofing the light generator and toilet unit pump;
• repositioning the lights to reduce glare; and
• sound-proofing the water pump. The Council added it had sought to move the pump, but could not for technical reasons. However, it had asked DHSC to look into further solutions to this problem.
11. The Council said its environmental health team had visited the site and “confirmed” it was creating no health issues or noise nuisances.
12. In June, Mr W raised his complaint again with the Council. In July, the Council gave its final response. It rejected Mr W’s claim it had been “negligent” in licensing the site to DHSC, and reiterated the various changes site staff had made to mitigate the impact on his property. It referred Mr W to the Ombudsman if he wished to pursue his complaint further, which Mr W did on 22 July.

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Legislative background

Statutory nuisances

13. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
14. 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
15. 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.
16. 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.
17. 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.

Abatement notices

18. 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.
19. 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.
20. 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.

Section 82 of the EPA

21. 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.

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Analysis

22. Mr W has made several complaints to the Council about alleged nuisance caused by the operations of the neighbouring COVID-19 test centre. In response, the Council has explained the various measures it has worked with DHSC to implement, to mitigate the impact of the site on Mr W’s property; it has also explained it does not consider there is evidence of any health issue or noise nuisance arising from the site.
23. Under the Environmental Protection Act, the Council has a duty to investigate and enforce against statutory nuisances. Mr W has complained about noise, light and odours, all of which can constitute a statutory nuisance.
24. However, establishing a statutory nuisance is a matter of professional judgement for Council officers. There is no straightforward objective test here, and officers must consider a range of factors before making their decision. The simple fact a person is troubled by a noise, light or odour does not mean officers will or should agree it amounts to a statutory nuisance.
25. The Ombudsman’s role is to review how councils have made their decisions, to identify and address the consequences of any administrative fault. But we do not provide a right of appeal against council decisions; we cannot overturn a council decision because someone contests it, and we cannot direct the council to act against its own officers’ professional judgement.
26. I note the Council says it has found no evidence of nuisance here, although it has not explained how it reached this conclusion. On this information alone, therefore, I cannot say whether there is evidence of administrative fault by the Council.
27. But, either way, I am conscious the Council has two, effectively conflicting, roles in this matter: it is both the local authority, with a duty to identify and enforce against nuisances; but also, as the owner of the site, it bears ultimate responsibility for any nuisance the site is causing.
28. Even if I were to find fault in the way the Council had investigated this matter, I would not be able to make my own decision whether Mr W was suffering a statutory nuisance, or what should be done to abate it. Therefore, I would essentially only be able to recommend the Council revisit and reconsider the evidence. It would remain the Council’s decision whether Mr W was suffering a statutory nuisance, and to determine the appropriate steps to abate any nuisance. It would also be the Council’s responsibility (as the site owner) to ensure these steps were implemented.
29. This being the case, I consider it would be more appropriate for Mr W’s complaint to be considered by the magistrates’ court, which Mr W has the right to apply for under s82 of the EPA, rather than by us. The court can make an objective decision whether he is suffering a statutory nuisance, and, if so, it can issue an order requiring the nuisance to be abated. The Ombudsman has neither of these powers.
30. I note Mr W has also said he considers the Council was negligent to allow DHSC to set up the testing centre at the site. However, it is for the Council to decide how to use its assets, including licensing other agencies to operate there. The Ombudsman cannot make such a decision on the Council’s behalf; nor can we consider whether the Council has been ‘negligent’, as this is legal matter which can only be decided by a court.
31. For these reasons, I consider the Ombudsman should not investigate this complaint.

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Final decision

32. I have not investigated this complaint.

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Investigator's decision on behalf of the Ombudsman