Summary: Mrs X complained the Council failed to properly investigate and to take action regarding odour nuisance from a neighbouring farm. There is no evidence of fault in the way the Council investigated the odour issue.

The complaint

1. Mrs X complains the Council has failed to properly investigate and to take action regarding odour nuisance from a neighbouring farm. Mrs X says the smell lingers in the house and garden affecting their quality of life. She is also concerned about gasses within the odour which she says could affect their health.

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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 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

4. I have considered the information supplied by Mrs X and have spoken to her on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
5. I gave Mrs X and the Council the opportunity to comment on a draft of this decision.

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What I found

6. Under section 79 of the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance. To count as a statutory nuisance the issue must either unreasonably and substantially interfere with the use or enjoyment of a home or other premises or injure health or be likely to injure health. Statutory nuisances can be caused by issues such as noise, odour, fumes and dust from premises.
7. Generally, the statutory nuisance will need to be witnessed by an environmental health officer. This person should come to an independent judgement about whether a nuisance exists by considering factors such as duration, intensity, location, and the time of day it occurs. If an officer decides a statutory nuisance is taking place, they must issue an Abatement Notice.
8. Businesses can offer a defence against an abatement notice by showing that they operate using the best practicable means to prevent the nuisance.
9. To assess odour, government guidance suggests councils use at least two human ‘sniffers’ to work out the strength of the smell, how often it is detectable and for how long it lasts, when it is recognisable, how offensive it is, its character and its emission rate.
10. Under the Council’s procedures, when it receives reports of odour problems it contacts the complainant for information on when the odour problem is experienced, the nature and character of the odour and the impact. It asks the complainant to complete odour diaries . It will then visit the complainant to assess the odour and visit the site. It recommends two officers visit to witness odours due to the wide range of sensitivity to odours in the population. The Council will then reach a judgement on whether the odour amounts to a statutory nuisance.
11. Under section 82 of the Environmental Protection Act 1990, a member of the public may bring a claim of statutory nuisance in the magistrates’ courts.

What happened

12. Mrs X’s property is next door to a farm. In late 2017 Mrs X contacted the Council about odour and flies from the neighbouring farm. The neighbour had sought planning permission to build a livestock barn close to their boundary and Mrs X felt the problem would become worse.
13. The Council sent Mrs X diary sheets to complete. She noted regular strong smells over a two week period for a number of hours at a time. She returned the diary sheets to the Council in late 2017. Mrs X also completed a questionnaire in which she reported the smell penetrated the house and the family? could not sit outside in summer due to the smell.
14. Due to an administrative error the case officer was not aware the Council had received the diary sheets until early 2018.
15. In early 2018 the farmer got planning permission to build a livestock barn which is close to Mrs X’s property. There was an informative note attached to the planning consent to draw the applicant’s attention to the potential impact of odour on the neighbouring properties. This requested the applicant took all reasonable measures to minimise the potential impact.
16. Two officers visited Mrs X’s property in January 2018. They did not note any odour. They found some flies on the top floor of the property which were of a type common to a rural environment. They also visited the neighbouring farm but found no issues.
17. Mrs X made two further complaints of odour in February and April 2018. An officer visited again on two occasions in May 2018. On one occasion they noted no odour. On the second they noted a few minor short lived farmyard smells but these were not sufficient to be considered a statutory nuisance. The Council contacted the Environment Agency who were asked to visit the farm. The Environment Agency reported back to the Council. It had carried out a full inspection and found no issues with the way the farm was operating. It ‘did not find anything that might be adding to any “normal” farm odours’. It found no obvious signs of anything that might cause excessive odour or files.
18. The Council closed Mrs X’s odour complaint in July 2018 as it found no evidence of a statutory nuisance. Mrs X complained to the Council. Mrs X said the Council had done little to investigate the odour and nothing to assess the particulates in the odour.
19. In its complaint response the Council set out how it had investigated the odour but had not witnessed any odour which would amount to a statutory nuisance. It explained it could measure air quality by roadsides but did not have the facilities to monitor other types of air pollution. Mrs X remained unhappy and asked to go to stage 2 of the complaints procedure.
20. In its stage 2 response, in December 2018, the Council explained that odour issues arising from agricultural sources are common within a rural setting and can often be offensive for short periods but are not considered to be prejudicial to health. They can however be a statutory nuisance if frequent, at a high enough intensity, last for a long time period and are very offensive in nature or character. It reiterated it had not found evidence of a statutory nuisance.
21. It accepted it had not fully considered the impact the flies were having on Mrs X and agreed to further investigate this issue. It asked her to contact it when the flies become an issue as they are less prevalent in the winter months. It said it would further investigate and assess the impact the flies were having on Mrs X’s home. It went on to say it was willing to consider the reinvestigation of the odour at the same time as it was assessing the impact of the flies.

Findings

22. We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made.
23. The Council has a duty to investigate complaints of potential statutory nuisance. The Council responded to Mrs X’s complaints of odour in line with its procedures and government guidance. It also asked the Environment Agency to inspect the farm and it found no fault with how the farm was operating. There is no evidence of fault in the way the Council has assessed Mrs X’s complaint of odour.
24. Mrs X has raised concerns about potential harmful particles in the odour. In its complaint response to Mrs X the Council explained it had investigated the odour as a potential statutory nuisance but did not have the facilities to monitor air pollution in such circumstances. The Council has the power to take action if an odour is prejudicial to health. However, the standard of proof to show prejudice to health is higher than required to identify an odour nuisance. The Council has dealt with Mrs X’s concerns as a nuisance issue. It is not fault that it has done this.
25. Mrs X says the Council has not enforced a planning condition relating to odour. When the farm received planning permission for a livestock barn the planning consent included an informative note to draw the applicant’s attention to the concerns raised by neighbours. This is not a planning condition and so cannot be enforced.
26. The Council has offered to reinvestigate the odour at the same time as it investigates Mrs X’s complaints of flies. This offer is appropriate and it is open to Mrs X to accept this offer.
27. It also remains open Mrs X to take her own action against the neighbouring property under S82 of the Environmental Protection Act 1990.

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Final decision

28. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman