Summary: Mrs B complained that the Council over many years had failed to take effective action to stop smoke and noise nuisance from a nearby factory. We did not found fault with the Council’s actions.

The complaint

1. Mrs B complained that the Council, in respect of smoke and noise nuisance from a nearby factory, had failed to properly investigate or take effective action to abate the nuisance. The situation had caused Mrs B significant distress and time and trouble over many years.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with an organisation’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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B 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

5. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’ such as noise and smoke from premises.
6. 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.
7. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers 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.
8. 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

9. 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.
10. 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.
11. 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.

What happened

12. Mrs B had complained for several years about smoke and noise nuisance from a nearby factory.
13. In October 2020 the Council said it had been liaising with the factory for many years about smoke nuisance. It had ensured the factory stopped burning wood in a drum outside and was continuing to investigate the use of the furnace inside the factory. The furnace was an approved appliance by the Environment Agency meaning it was safe and the Council was satisfied the factory was only using clean wood. The Council said it had visited on many occasions and not witnessed any smoke or noise nuisance which would amount to a statutory nuisance.
14. Mrs B continued to complain in 2021 and the Council continued to visit. It did not witness a statutory nuisance from either smoke or noise. In April 2021 a manager explained to a local councillor that they were meeting again with the factory to discuss the burning. However, they explained that the Council was limited in the action it could take, as it could not impose unreasonable conditions on existing premises and if the Council took legal action (although it did not have sufficient evidence of a nuisance to do so) the factory could use the Best Practicable Means defence to argue it had taken reasonable measures to mitigate the nuisance. The manager said they had never witnessed any nuisance from smoke or noise.
15. Mrs B continued to complain. In June 2021 a senior director wrote to Mrs B to say the Council was closing her case as it had investigated as far as it could and there was no further action it could take. It explained that:
• the site has had an industrial use for many years and the current factory had been there for 12 years.
• the factory had obtained exemption certificate from DEFRA to burn clean wood, which happened at the rear of the site. The Council in consultation with the Environment Agency had served an abatement notice to stop this.
• the factory was only allowed to use the furnace which was an approved appliance and safe.
• the Council had held many meetings with the factory and the Council was satisfied the factory had steps taken to minimise smoke from the chimney.
• the Council was not expected to interpret its duties under the EPA 1990 as a way of obliging businesses to adopt too high a standard of abatement. The factory was required to do enough to prevent or (as far as practicable) counteract the effects of the nuisance. The Best Practicable Means defence was available to protect commercial interests and sometimes this resulted in a nuisance being allowed to continue.
• there was no evidence of toxic fumes: the factory was not burning paint or varnish.
• the Council had contacted Public Health England for advice, and it said that the factory appeared to be operating within the regulatory framework and was using emission control measures.
• the Council had visited the factory many times and issued advice to the factory on further measures it could take to reduce noise and dust.
• no officers had witnessed a statutory nuisance from noise or smoke.
• Mrs B could seek advice about taking her own action under the EPA.
16. Mrs B continued to complain and in early 2022 her MP complained on her behalf. The Council reiterated the action it had taken. She made more complaints, and the Council confirmed her case was closed.
17. In May 2022 Mrs B made a formal complaint about the lack of action.
18. The Council responded in June 2022. It repeated the actions it had taken, including recent visits (where no nuisance was witnessed), and again explained that the Council had limited powers to deal with complaints from business premises. The Council could only require the factory to adopt best practice to minimise noise disturbance to residents. As the noise complaints were received during the normal working day there was limited action the Council could take. It also explained the likelihood of the factory using the Best Practicable Means defence successfully. The Council said it had exhausted all investigatory avenues and the case remained closed. It provided her with details of a well-being hub if she wished to seek support.
19. Mrs B escalated her complaint to stage two of the Council’s complaints procedure. She was particularly unhappy that the Council had not visited her to witness the nuisance. She submitted recordings of the noise that she had taken.
20. The Council responded in October 2022. It explained again that it had done everything it could to ensure that the factory had applied best practice measures. It responded specifically to her noise readings having discussed the issue with a technical officer. It did not consider the noise was unreasonable for a semi-industrial premises during the working day. It said the noise levels were unlikely to be considered a statutory nuisance in the context of the business use.
21. Mrs B complained to us in March 2023.

Analysis

22. I realise Mrs B is upset by the noise and smoke from the factory near her home. However, she has been complaining about the problem for many years and I have not identified any fault in the way the Council has responded to her complaints. It has liaised with the factory owner and achieved some improvements. It has visited the site on many occasions but not witnessed a nuisance from smoke or noise which it considers to be a statutory nuisance taking into account that it occurs during a normal working day. It has explained to Mrs B on several occasions that its power is limited because the factory is a business and can rely on the Best Practicable Means defence to justify a certain level of noise and smoke emissions for commercial reasons. It has liaised with other statutory and regulatory bodies such as Public Health England and the Environment Agency but has not obtained sufficient evidence of a statutory nuisance to take any further action.
23. It has considered Mrs B’s evidence of noise but again reached the view that it does not amount to a statutory nuisance given the need to take into account that the factory is operating as a commercial business and has done so for 12 years. It has correctly advised Mrs B she could consider taking her own action against the business and seek support with the distress she is experiencing.
24. I accept this will be disappointing for Mrs B but as I have not found fault with the Council’s actions, I cannot recommend it changes its view of the alleged nuisance or takes any additional action.

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Final decision

25. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs B.

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Investigator's decision on behalf of the Ombudsman