Summary: The Ombudsman has discontinued his investigation of this complaint, about the Council’s handling of a statutory nuisance investigation. This is because all substantive matters are out of time.

The complaint

1. The complainant, to whom I refer as Mr P, says the Council did not properly investigate his reports of nuisance smells from a nearby water treatment plant.

Back to top

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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

Back to top

How I considered this complaint

4. I reviewed Mr P’s correspondence with the Council.
5. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

6. In 2002, a utilities company built a water treatment plant near Mr P’s home. He says, at that time, the company told local residents the plant would not create nuisance noise or smells.
7. On 1 December 2018, Mr P wrote a letter to the Department for the Environment, Food & Rural Affairs (Defra). He said the plant had consistently created an intolerable smell nuisance since it had opened, and it had been a particular problem during the hot summer of that year. Mr P said he and his wife were both in their 70s, and had been forced to keep their windows closed despite the weather, endangering their health.
8. Defra replied on 31 December. It explained nuisances are covered by the Environmental Protection Act 1990 (‘the EPA’), and it was the responsibility of the local authority to enforce this. It said Mr P could approach the Ombudsman if he was dissatisfied with the Council’s handling of any investigation.
9. On 8 February 2019, Mr P forwarded a copy of his letter to Defra to the Council. The Council accepted this as a stage 1 complaint, and replied on 8 March.
10. The Council said it had previously investigated Mr P’s complaints about nuisances from the plant, most recently in 2014. It noted Mr P had submitted diary sheets, and it had then asked him to request home visits from officers at times when nuisances were present. It said, although Mr P had not done so, officers had visited proactively anyway, and in response to calls from other residents.
11. The Council said officers did not consider the evidence they had gathered to show a statutory nuisance, because of the frequency and duration of the nuisance. It said it had continued to investigate the matter when contacted by other residents; but such reports were relatively infrequent.
12. The Council explained it was not suggesting the plant never produced an odour, but that it did not amount to a statutory nuisance, and that some odour was to be expected given the plant’s function.
13. The Council provided Mr P with further diary sheets to submit if he wished, and invited him to contact officers when nuisances were occurring so they might investigate, including via its out-of-hours service.
14. Mr P submitted a stage 2 complaint on 13 March. He said he had completed many diary sheets previously, without effect; and when officers had visited they had agreed the smell was “unacceptable” but “could do nothing”, and that it was residents’ problem for living near the plant. Mr P said this was not a defence under the EPA.
15. Mr P also said he had made numerous calls to the Council, but these were not answered. He reminded the Council the utilities company had said the plant would produce no odour.
16. The Council replied on 10 April. It reiterated it had not found a statutory nuisance, and explained the test was one of “reasonableness”, and that it was ‘reasonable’ to expect some level of odour from the plant. The Council said it was not responsible for any comments made by the utilities company. It did not uphold Mr P’s complaint, and referred him to the Ombudsman if he wished to pursue it further.
17. Mr P approached the Ombudsman on 24 April.

Back to top

Legislative background

18. Under the 1990 Act, a council has a statutory duty to take reasonable steps to investigate complaints about noise, odour, smoke or other nuisances. For the issue to be 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.
19. There is no fixed point at which something becomes a statutory nuisance. To determine that a statutory nuisance exists, local authorities must weigh up a range of different factors, including the frequency and timing of the issue, and the actual effect it has on the complainant(s). It is a matter of professional judgement for an environmental health officer to take.
20. If a council identifies a statutory nuisance then an abatement notice should be served on the person responsible. If a person does not comply with an abatement notice they can be prosecuted and fined.
21. Sometimes it might not be possible for the council to determine whether a nuisance exists – for example, if the problem is intermittent or unpredictable, the evidence may not be available. A complainant can instead take private action in the magistrates’ court under section 82 of the 1990 Act.

Back to top

Analysis

22. The Ombudsman expects complainants to approach him within 12 months of becoming aware of the substantive issue. It can be difficult to investigate late complaints, because reliable records are less likely to exist, officers may find it difficult to explain the reasons for decisions they made, and because we are less able to remedy any injustice.
23. The Ombudsman has the discretion to accept late complaints, but would need to be satisfied there was a good reason the complainant had not approached him sooner. He would also need to be satisfied it was still possible to carry out an effective investigation.
24. Mr P submitted his complaint to the Council in February 2019. However, it is clear from the Council’s response the substantive matters are much older. It appears the last time the Council made a decision on whether Mr P was suffering a statutory nuisance was in 2014.
25. For this reason, I do not consider the Ombudsman should accept this as a late complaint. Mr P has been aware of the issue for many years. Given his dissatisfaction with the Council’s handling of the matter arose by 2014, at the latest, he could have submitted a complaint much sooner.
26. It is also very unlikely the Ombudsman could effectively investigate the Council’s handling of a statutory nuisance matter in 2014.
27. The Ombudsman’s role is to review the adherence to procedure of bodies in his jurisdiction. He does not act as an appeal body, and he cannot make decisions on authorities’ behalf.
28. As I have said, it is a matter of professional judgement – in other words, the opinion of an environmental health officer – whether there is such a nuisance. To investigate Mr P’s complaint now, I would need to explore the rationale behind decisions made five years ago or more, to determine whether they were made properly. I do not consider I could do so effectively.
29. And, even if I did investigate this complaint, the most I would likely be able to recommend is for the Council to undertake a fresh statutory nuisance investigation. The Council has invited Mr P to make new reports, and so there is no need for the Ombudsman to recommend this.
30. Mr P also has the right to take his own action in the magistrates’ court, under s82 of the EPA.

Back to top

Final decision

31. I have discontinued my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman