Colchester Borough Council (18 011 750)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 09 May 2019

The Ombudsman's final decision:

Summary: Mrs X complains the Council failed to properly investigate her complaint of a statutory nuisance caused by burning waste on a neighbouring property. She also complains the Council has poorly managed her complaint. There was no fault in how the Council investigated the matter. However, there was some fault it how it communicated with Mrs X. It gave Mrs X wrong advice and did not inform her of the outcome of a site visit. The Council has agreed to apologise to Mrs X and remind its staff of the law related to waste management and the need to keep complainants informed during statutory nuisance investigations.

The complaint

  1. Mrs X complains the Council has failed to properly investigate her complaint of a statutory nuisance caused by burning waste on a neighbouring property. She says the burning causes unpleasant odours which unreasonably interfere with her enjoyment of her property. She wants the Council to complete a thorough investigation and take appropriate enforcement action.
  2. Mrs X also complains the Council has poorly managed her complaint. She says the Council has not treated her with respect or replied to her messages in a timely manner.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. 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)

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How I considered this complaint

  1. I read Mrs X’s complaint and discussed it with her on the phone.
  2. I made enquiries of the Council and considered the information it sent me.
  3. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

  1. The Environmental Protection Act 1990 provides the legal framework for issues about waste management.
  2. Section 33 of the Act relates to the unauthorised depositing, treatment or disposal of waste. A person is not allowed to deposit, treat or dispose of waste in a way that may cause harm. It is against the law to dump or burn some solid wastes, which includes horse manure and contaminated bedding. The Environment Agency and councils can carry out enforcement action in relation to this part of the Act. The Ombudsman only has jurisdiction to consider the Environment Agency’s actions in relation to flood defences. So, I cannot look at the actions of the Environment Agency in relation to Mrs X’s complaint.
  3. The Act also sets out councils’ responsibilities to investigate complaints about issues that could be considered a statutory nuisance.
  4. For the issue to count as a statutory nuisance it must either:
    • Unreasonably and substantially interfere with the use or enjoyment of a home, or other premises;
    • Injure health or be likely to injure health.
  5. If a council is satisfied a statutory nuisance exists, it has a duty to act. The council must serve an abatement notice restricting or forbidding occurrence or reoccurrence of the activity.
  6. Colchester Council has a standard procedure for investigating complaints of domestic smoke nuisance. The procedure says the object of an investigation is to establish the cause of the problem, and whether a nuisance exists or not. The Council must tell the complainant this. The Council will give the complainant diary sheets to complete for 28 days and tell them it will need to witness the alleged nuisance from their property. The Council will make up to three attempts to witness the alleged nuisance.
  7. If a nuisance is established, the Council will likely take enforcement action. If a nuisance is not established, it will inform the complainant and explain the reasons.
  8. The Council’s complaints procedure has two stages. An officer not already involved in the case will investigate the stage one complaint and respond within four weeks. If the complainant is not satisfied with the response, they can request a stage two investigation. A member of the senior management team will investigate stage two complaints and will provide a response within four weeks.

What happened

  1. In June 2018, Mrs X contacted the Council. She said one of her neighbours was burning manure in the evenings. This was causing smoke and odours which were adversely affecting her enjoyment of her property.
  2. Four days later, the Council replied. It said burning horse manure was not an offence. It said it would investigate her complaint as a statutory smoke/odour nuisance. It told her the Council first needed to establish if the smoke/odour was causing a statutory nuisance. It attached diary sheets for Mrs X to complete.
  3. Mrs X replied the same day. She said she thought burning horse manure was an offence. The Council said there was no legislation forbidding burning horse manure and she had been misinformed. It said, ‘the movement, storage and disposal of wastes (where specific regulations apply) is enforced by the Environment Agency, as [Mrs X had] spoken to the Environment Agency I am assuming that horse manure does not require specific permits and burning is not specifically prohibited under waste legislation and they do not consider that it falls under section 33 of the Environment Protection Act.’ It said it would investigate her concerns as a statutory nuisance.
  4. Mrs X asked for details of how to contact the Council’s complaints team. The Council replied to her the same day with this information. Mrs X says she then complained to the Council. In its response to our enquiries, the Council said it did not receive a formal complaint from Mrs X in June 2018.
  5. Mrs X agreed for the Council to start its investigation of the smoke/odour as a statutory nuisance. The Council said a complaint investigation and the investigation into the statutory nuisance could run concurrently.
  6. Later that month the Council emailed Mrs X. It said it had spoken to the neighbour. The neighbour told the Council they did not burn manure, they sold it. It asked Mrs X to continue to keep a log on the diary sheets and to ring the Council when the smoke/odour was present, so the Council could visit to witness it. It advised her to ring the team directly in office hours, or the Council’s Out of Hours team if the nuisance occurred on a Friday or Saturday night.
  7. Mrs X replied to the Council. She asked if the team would need to come on to her property, as she did not want her animals and her child to be disturbed by a visit late evening. The Council replied to say it could witness the smoke/odour from the road/property boundary, as the road was between the site of the fire and Mrs X’s property.
  8. Mrs X rang the Out of Hours team at the end of June and an officer visited to witness the smoke/odour the same evening. The report said there were only slight wisps of smoke. They accepted the fire might have burnt out as Mrs X had called the team an hour earlier. It rang Mrs X but she did not answer, so the officer left a voicemail telling Mrs X their findings.
  9. The next evening Mrs X rang the Out of Hours team again. The team visited and spoke with Mrs X at the property boundary. The officer witnessed the site of the fire and the smoke/odour. The record said the site of the fire appeared to be different from the previous night. It said they did not feel it was necessary to go inside the property to investigate further, as they could smell the odour from outside the property. Mrs X had also asked officers not to come on to her property.
  10. The Out of Hours team fed back to the investigating officer. The case note said they had witnessed the fire and the odour but did not consider the odour to be sufficient to be a statutory nuisance.
  11. Mrs X made further reports of smoke/odour to the Council and sent in video evidence.
  12. In July 2018, the Council wrote to the landowner telling them the Council had received a complaint. It advised them it was an offence to cause smoke or odours which caused a statutory nuisance. It requested a site visit. The Council emailed Mrs X to tell her this.
  13. Mrs X told the Council she was unhappy with how it was investigating and felt it was unwilling to progress the issue. She said the officers needed to come and sit in her lounge to appreciate the smell. The Council replied asking Mrs X to ring them to discuss the matter. Mrs X replied saying she would not ring and wanted her concerns logged with her formal complaint.
  14. The Council replied and told her it logged all her emails for the complaints’ manager.
  15. In mid-July 2018, a Council officer visited the neighbouring property to speak with the owner and to inspect the site. The records say he inspected the fire site and found only ash and straw. The owner told him he bagged and sold the manure. The owner told the Council officer the manure was collected weekly and showed him some bags ready for collection.
  16. In September 2018, Mrs X contacted the Council again. She said the neighbour was burning manure again. She asked if she needed to raise a new complaint or if this could be added to her previous complaint.
  17. The Council replied saying it had inspected the site and had found no evidence the owner was burning manure. It advised Mrs X to only record when smoke and odour was substantially affecting her in her property.
  18. Mrs X replied and said the Council had not contacted her since it told her it planned to complete a site inspection. It had not told her the outcome of the site visit. She also said she had not had a response to her formal complaint. She asked the Council for details of the relevant external Ombudsman.
  19. The Council replied the same day with details of its complaint’s procedure. It advised her to follow this procedure before contacting the Ombudsman.
  20. Later in September the Council replied to her Stage One complaint. A team manager completed the response. It said the Council had completed two visits to her property and a site visit to the neighbouring property. It said it did not have enough evidence the smoke and odour caused a statutory nuisance. It said it had responded to her emails in a timely fashion.
  21. Mrs X was not happy with this response and escalated her complaint to stage two. She complained the Council:
    • was not timely in its responses;
    • had not investigated thoroughly;
    • had not provided her with details of the external Ombudsman when asked.

She also said burning of horse manure was subject to environmental regulation and the Council was wrong when it told her burning horse manure was not an offence.

  1. The Council replied to her stage two complaint two weeks later. It did not uphold her complaint and Mrs X brought her complaint to the Local Government and Social Care Ombudsman.

Analysis

  1. In June 2018, Mrs X told the Council several times she thought burning manure was an offence. The Council told her she had been misinformed. Government guidance says it is against the law to dump or burn some solid wastes, which includes horse manure and contaminated bedding. It should not have given Mrs X incorrect information. The Environmental Protection Act 1990 says the Environment Agency and councils can carry out enforcement action related to the harmful depositing, treatment or disposal of waste. Depending on the circumstances, it may be more appropriate for the Environment Agency or the council to complete an investigation. The Council failed to clearly explain this to Mrs X. This was fault.
  2. The Council completed an investigation into Mrs X’s complaint as a statutory nuisance. It did not find sufficient evidence of odour or smoke causing a statutory nuisance. It found no evidence Mrs X’s neighbour was burning horse manure. Had the Council correctly advised Mrs X, the outcome would not have been different. This fault caused no injustice to Mrs X.
  3. The Council replied to Mrs X’s emails appropriately and in a timely manner. It replied to most emails the same day or within a couple of days. It provided her with details of its complaints procedure when asked. There is no evidence of fault in the way it managed its communications with Mrs X.
  4. The Council investigated the alleged statutory nuisance appropriately. It explained the investigation process to her. It sent her diary sheets and advised her how to contact the Council to arrange visits for officers to witness the smoke and odour. It visited her property twice and completed a site visit to inspect the site of the fire.
  5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. The Council investigated Mrs X’s concerns in line with its procedure and decided the smoke and odour was not sufficient to be a statutory nuisance. As there is no evidence of fault in the way it investigated her concerns, I cannot question the Council’s decision the odour/smoke was not a statutory nuisance.
  6. However, the Council did not provide feedback to Mrs X after the site visit. This failure to provide feedback to Mrs X is fault.
  7. The Council first told Mrs X how to make a formal complaint in June 2018. It told Mrs X if she made a complaint, the investigation could run concurrently with the statutory nuisance investigation. Mrs X says she made a formal complaint in June 2018 but did not receive a response. The Council says it did not receive a formal complaint from Mrs X until September 2018. I cannot say whether Mrs X made a formal complaint in June 2018. However, I have seen no evidence the Council received a complaint. Because of this, I cannot say it was at fault for not providing Mrs X with a response. The Council responded appropriately when she submitted a formal complaint in September 2018.

Agreed action

  1. Within one month of the final decision the Council will:
    • write to Mrs X to apologise for the frustration caused by the faults identified;
    • remind its officers of the law relating to waste management to ensure it provides correct advice to residents around burning horse manure;
    • remind its officers of the need to keep complainants informed during statutory nuisance investigations.

It should provide evidence to the Ombudsman to show it has done this.

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Final decision

  1. I have completed my investigation. I have found evidence of fault by the Council. It has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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