The Ombudsman's final decision:
Summary: There was fault when the Council failed to investigate a nuisance complaint about a waste site. There was no significant injustice to the complainant. This was because the Council did carry out other visits to monitor the site which found no statutory nuisance. The Environment Agency also confirmed the site was being operated in accordance with its permit.
- Ms X complains that the Council failed to properly consider a complaint of an odour nuisance she made about an Energy from Waste (EfW) plant near her home.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I spoke to Ms X and I considered the information she provided and the complaint she made. I asked the Council for information and considered its response to the complaint. I considered the law and the relevant government guidance. I sent my draft decision to Ms X and the Council to enable them to comment before I took a final decision.
What I found
- Ms X lives near to an EfW plant. The plant operates under a permit which is granted by the Environment Agency (EA). The EA has responsibility for enforcing the conditions of the permit.
- In September 2017, Ms X complained to the Council about foul odours which smelt of rotting rubbish. She complained the odours were coming from the plant. She chased up her complaint later the same month. Ms X copied her email to the EA.
- The Council noted it had received previous correspondence from Ms X about the site. It told Ms X that the EA were the regulatory body responsible for monitoring the EfW plant and they would need to consider any reports of nuisances.
- The Council stated it did not have any authority to undertake investigations and it was not in a position to determine if there was a nuisance from the site. It explained this was because such decisions had to be made by a representative of the EA. The Council noted Ms X had already raised issue with the EA.
- Ms X complained to the Ombudsman that the Council were refusing to investigate her complaints even when they had a statutory duty to do so under the Environmental Protection Act 1990. She stated DEFRA guidelines (about sites with permits monitored by the EA) stated councils should liaise with the EA. She stated the guidance states residents should not be penalised twice for the same nuisance.
- The Council provided a copy of correspondence with the EA in 2015. In this correspondence, the Council established what the EA permit included and it obtained the EA’s view about the activities at the EfW plant and the operator’s compliance with the permit.
- In response to Ms X’s complaint to the Ombudsman the Council acknowledged that investigations could potentially be instigated and it accepted the advice it gave Ms X was wrong because it retained its duties to investigate under the Environmental Protection Act.
- However, the Council stated it had been aware Ms X had also complained to the EA. The Council stated that, if a site could show that it was adhering to its permit conditions it was likely it could demonstrate a ‘best practical means’ defence against any prosecution for statutory nuisance.
- The Council did not contact the EA at the time Ms X complained, but it provided us with confirmation from the EA dated March 2018 that the plant has continued to operate in compliance with its permit. The EA stated it would not support an approach to the Secretary of State in respect of statutory nuisance.
- Although the Council accepted it did not investigate Ms X’s specific complaint in September, it did carry out some regular monitoring of the area during October, November and December 2017. Although these visits were not as a result of Ms X’s complaint, the officers that visited the site found no evidence that a statutory nuisance existed.
The law and relevant guidance
- The Environmental Protection Act 1990 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’.
- 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.
- DEFRA guidance (The Environmental Permitting Regulations) refer specifically to sites which are subject to EA permits. The guidance confirms the Council’s duties under the Environmental Protection Act. However, it states where the same event might be prosecuted by the EA and a council, the council must obtain the Secretary of State’s consent before they prosecute. The guidance indicates the aim of this is to avoid a site operator being prosecuted by two separate organisations over the same event.
- The DEFRA guidance makes it clear that councils are only required to seek consent from the Secretary of State before prosecuting. It states councils do not need consent to exercise their functions under the Environmental Protection Act up to and including servicing an Abatement Notice.
- The guidance goes on to provide detailed guidance. It suggests that councils liaise with the EA to confirm what a permit covers when deciding if consent to prosecute is required.
- I recognise the Council may seek information from the EA about the operation of the EfW plant when considering complaints from the public. It is recognised that if a site can show a council it is adhering permit conditions this may be relevant evidence for councils to consider when deciding if there is evidence of a statutory nuisance and when deciding what action to take.
- However, Ms X complains the Council failed to meet its statutory duty when it decided not to investigate her complaints of odour nuisances from the EfW plant near to her home.
- The Council’s response to Ms X’s complaint stated it lacked the authority to undertake investigations into alleged nuisances at the waste site Ms X complained of. Government guidance shows this was not the case. The guidance makes it clear that councils do not need consent to investigate and are not prevented from carrying out their duties under the Environmental Protection Act. They are only required to seek consent should they later be considering prosecution. So, what the Council told Ms X was incorrect.
- As the Council still has a duty to investigate, it should take reasonable steps to do so and, if a nuisance is witnessed it has a duty to issue an Abatement Notice. So, the Council’s response to Ms X’s report and its failure to take steps to investigate it represent fault by the Council.
- Although there is fault, I am not persuaded this led to a significant injustice to Ms X on this occasion. I say this because the Council has provided evidence that it is in contact with the EA and that the EA considers the plant is operating in accordance with the EA permit. The Council had previously taken steps to establish the extent of the permit conditions that apply to the plant. The Council also confirmed that officers visited the site on a regular basis to consider whether a nuisance was being caused by the waste plant. When officers visited around four weeks after Ms X’s complaint, they decided there was no evidence of a statutory nuisance.
- Given the information from the EA and the visits the Council undertook to monitor possible nuisances from the waste plant some time after Ms X’s complaint, I do not consider the fault I identified caused any significant injustice to Ms X. However, the Council should review its processes to ensure it meets its statutory duties under the Environment al Protection Act 1990. The Council told me it had revised its procedures since the complaint. Nevertheless, I have recommended the Council carries out a review of its processes in the light of our findings.
- Within six weeks of my final decision the Council agreed to reconsider its procedure for dealing with reports of nuisances on sites that are subject to Environment Agency permits. It should ensure that officers understand that the Environmental Permitting rules do not limit or remove the Council’s duty to take reasonable steps to investigate complaints of nuisances.
- I found there was fault, but this did not lead to a significant injustice.
Investigator's decision on behalf of the Ombudsman