Summary: Mr X complains about the Council’s handling of concerns relating to noise, smoke, emissions and other pollution created by his relative’s neighbour. There is no fault in the Council’s approach to Mr X’s concerns.

The complaint

1. Mr X complains about the Council’s handling of concerns relating to noise, smoke, emissions and other pollution created by his relative’s (Y) neighbour. Y’s neighbour is operating a business out of their residential property, which causes an unacceptable nuisance to Y. Mr X says his complaints to the Council about this have been ignored or not fully acted upon. Y feels intimidated by their neighbour and is unable to enjoy their property without constant disturbance from the neighbour’s business. Mr X wants the Council to take action to help abate the nuisance and distress being caused to his relative.

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The Ombudsman’s role and powers

2. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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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What I have and have not investigated

5. When Mr X first brought this complaint to us, his concerns appeared to relate to the Council’s handling of planning enforcement issues as Y’s neighbour was operating a commercial business from a residential property. Mr X has since confirmed he understands the reasons why the Council is no longer able to take planning enforcement action in this case, although he does not agree with this outcome.
6. My investigation examines how the Council has dealt with Mr X’s report of alleged statutory nuisance caused by his relative’s neighbour from August 2023 to the beginning of January 2024.

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How I considered this complaint

7. I have spoken to Mr X and considered the information he has provided in support of his concerns.
8. I have considered the information the Council has provided in response to my enquiries.
9. Mr X 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 Nuisance

10. The Environmental Protection Act 1990 (EPA) states that smoke, gases/fumes, dust, steam, odour, deposits or noise emitted from premises, including land, can be a statutory nuisance. If someone living in a council’s area complains about a statutory nuisance, the council must ‘take such steps as are reasonably practicable to investigate the complaint’.
11. 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.

12. 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.
13. 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.
14. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
15. If a council is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an Abatement Notice on the person responsible for the nuisance, or on the owner or occupier. The Council can prosecute someone if they fail to comply with an Abatement Notice.
16. Under the EPA, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. However, 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. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the EPA.

What happened

17. This timeline of key events does not cover everything that happened.
18. In early August 2023, the Council’s Planning Enforcement Team explained to Mr X that it could not progress his complaint about an alleged planning breach by his relative’s (Y) neighbour. The Team had referred concerns Mr X and Y had about the unacceptable noise, smoke, emissions and other pollution caused by Y’s neighbour to the Council’s Commercial Nuisance Team for further investigation.
19. From this point, Mr X sent the Council emails which included video recordings and still images of Y’s neighbour and the alleged nuisance their business was causing. In late September 2023, the Council Officer allocated to Mr X and Y’s case asked for times and dates when they could visit Y’s property to witness the alleged nuisance. The Officer explained they could not accept the video footage and images Mr X submitted as evidence of alleged statutory nuisance.
20. Mr X continued to send the Officer further emails with images and video footage of Y’s neighbour. He explained Y is fearful of their neighbour and unwilling to accept any visits from Council employees without Mr X being present. Mr X questioned why the evidence he sent to the Council was not sufficient for it to take further action.
21. In October 2023, the Council Officer sent Mr X three emails in which they explained in detail the process of determining whether a statutory nuisance has occurred. The Officer clarified that evidence must be gathered directly by the Council and it must witness the alleged nuisance to determine whether it meets the legal tests to warrant abatement action. The Officer asked Mr X or Y to contact them when the alleged nuisance was occurring so they could attend to witness this.
22. Further contact between Mr X and the Council ensued. In this, Mr X continued to question why the evidence gathered from the closed circuit television (CCTV) installed at Y’s home could not be used by the Council to take further action. The Council explained to Mr X that he could pursue private action through the courts against Y’s neighbour, under section 82 of the EPA. Throughout this time, Mr X continued to send the Council video recordings and still images of Y’s neighbour.
23. Mr X escalated his concerns about the Council’s handling to us in late September 2023 but his contact with the Council about the issues continued. In January 2024, the Council’s Principal Officer responded to further correspondence from Mr X and reiterated the explanations the Officer had given in October 2023.
24. The Council has offered to attend Y’s property to witness the alleged nuisance by the neighbour. It has explained that it needs Mr X or Y to alert it when the issues occur because without this, the Council cannot proceed.

Analysis

25. Mr X says Y is very fearful of reprisals from their neighbour for reporting the nuisance they are alleged to be causing. Y is elderly and understandably feels vulnerable and distressed by the actions of their neighbour.
26. The Council has however repeatedly explained to Mr X why it needs to gather its own evidence to determine what further action, if any, it should take. The Council has provided clear explanations to Mr X about the legal process of determining whether a statutory nuisance has occurred and why it cannot act solely on his evidence.
27. Mr X has told the Council he is sceptical it will attend in time to witness the alleged nuisance. This is not however evidence of fault by the Council as it remains open and willing to attend Y’s property to witness the issues that are causing them distress and interfering with their enjoyment of their home.
28. The Council has clearly explained its processes and what is required before it can take any action. It is reliant on Mr X and Y engaging with this process. There is no evidence of fault in the way the Council has attempted to collect evidence and witness the alleged nuisance.

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Final decision

29. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman