Summary: Mr X complains the Council was at fault in the way it responded to his complaints of nuisance caused by a nearby pig farm. We have found no evidence of fault in the way the Council considered these matters so have completed our investigation.

The complaint

1. The complainant whom I shall refer to as Mr X complains about the way the Council responded to his concerns about a nuisance caused by a nearby pig farm. In particular Mr X says:
• The Council failed to take planning enforcement action against the farm owner as there is no planning permission for the pig farm to operate. Mr X says the farm is 150 m away from his garden and should not be permitted so close to residential properties.
• The pig farm causes a smell nuisance from large piles of pig waste kept in the farmyard for long periods of time causing distress to Mr X as he cannot keep his windows open.
• Effluence from the waste runs into a nearby water course.
• Running the pig farm and its waste causes a nuisance from rats so he cannot use his garden which Mr X finds distressing.
• The Council should take responsibility to clear the road to the farm of mud and effluence as it is a public highway. Mr X says there are signs saying the road is unsuitable for large vehicles so the Council should stop large lorries using the road causing damage.

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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 read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
5. 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

Planning complaint

6. The Council has a planning protocol for any enforcement action. It says it will investigate complaints about a possible breach of planning permission. The Council has discretion over whether to take any formal action and it will act proportionately to the breach of planning control. The policy says any action it takes will be ‘expedient’, meaning it is the right thing to do.
7. Mr X lives in a house next to a long-established farm. The farm has operated as a pig farm for many years. The farm and Mr X’s house are in open countryside with a nearby watercourse and woods.
8. The Council has two recorded complaints about alleged breaches of planning control at the farm. Mr X did not make the complaints. The first complaint in 2016 concerned the farm owner erecting two agricultural feed silos. The Council investigated and found a breach of planning control. The Council asked the owner to submit a retrospective planning application. The owner did not do so. The Council considered under planning law it would have granted planning permission for the development with no conditions if it had been submitted. The Council decided it was not expedient to take any further action.
9. The Council received the second complaint in 2018 about possible new buildings and extensions at the farm. The Council investigated and found the buildings were the silos it found in 2016 and no new extensions. The Council found a small development at the front of one building and asked for a planning application to regularise the work. The owner did not submit a planning application. The Council decided under planning law it would have granted planning permission if it had received an application with no planning conditions. The Council decided it was not expedient to take any further action.
10. The complainant in 2018 asked whether a change in livestock at the farm needed planning permission. The Council advised a change of livestock in the accommodation did not need planning permission.

My assessment

11. The documents provided by the Council show it has investigated complaints made about a breach of planning control at the farm. It has dealt with the issues according to its planning protocol, considered planning legislation and decided it was not expedient to take any action. This is a decision it is entitled to make. There is no evidence of fault by the Council in the way it has made its decisions not to take any enforcement action.

Complaints about smell, effluence, and rats

12. Councils can consider complaints about ‘statutory nuisance’ as defined in the Environmental Protection Act 1990. For the problem complained about it must be judged to ‘unreasonably and substantially interfere with the use or enjoyment of a home or other premises’ or ‘injure health or be likely to injure health’.
13. Councils have specific legal powers under the Prevention of Damage by Pests Act 1949, to take any steps deemed necessary to ensure that owners and occupiers of land keep their land free from large numbers of rats and mice. Councils may serve a notice under section 4 of the Act, setting out the steps they require and the time limit for action. They can require a treatment by a professional pest controller, removal of rubbish, or structural works.
14. If the owner/occupier does not carry out works within a reasonable period, councils can carry out works on their behalf and look to recoup the costs. There is a right to appeal a notice to the Magistrates Court within 21 days, under sections 290 and 300 of the Public Health Act 1936.
15. The Council does not have a published policy for investigating complaints of nuisance. But uses a Standard Operating Procedure (SOP) which mainly refers to complaints of noise. This says it will investigate complaints and ask for diary sheets from complainants. Officers send a letter to the premises complained about to notify of the problem. The Council can close a complaint if a complainant does not return the diary sheets. If it receives the diary sheets it will decide if there is a possible statutory nuisance for escalation to the next step. This will be whether further action is needed eventually leading to a prosecution.
16. The Council is currently reviewing and revising the SOP to include procedures to investigate other statutory nuisances such as odour, dust, and smoke.

The Council’s response to Mr X’s complaints

17. The Council received a complaint from Mr X in May 2019 about pig waste at the farm resulting in flies, rats, and a smell nuisance. The Council wrote to Mr X advising it would carry out a rodent survey, but it was not always easy to locate the source of rodent activity. The Council confrims Mr X’s house and the nearby farm are in a remote rural setting surrounded by agricultural land and close to a water course. This is the natural habitat of animals including rats.
18. The Council advised Mr X to take suitable measures to protect his property from possible infestation and arrange his own pest control as it was likely to be successful. The Council wrote to the farm owner about the complaint, rodent survey and suggested reviewing the pest control measures at the farm.
19. A Community Protection officer visited the farm and Mr X. The officer found the farm owner had a contract with a pest control company to carry out monthly visits to the farm to monitor the site and deal with any issues. The officer said the Council would monitor the situation. The officer considered there was no smell nuisance but asked Mr X to keep diary sheets logging the issues.
20. Mr X complained to the Council again in July 2019 about the smell from a nearby manure pile at the farm. An officer visited the site and found no smell or manure pile. Mr X did not send any diary sheets about the smell nuisance and the Council closed the complaint in October 2019.
21. The officer visited the site again and reported seeing dead rats in the lane. The officer was satisfied the measures put in place with the pest control company were suitable, so needed no further action. Mr X said he did not intend to use any treatment for rats in his property. The officer told Mr X the Council could not put down any treatment to stop the rats in the hedges in case of any impact on livestock from a nearby working farm.
22. The Council says it responded to Mr X’s complaint about effluence running into the nearby water course and possible contamination in 2017. The Council referred the matter to the Environment Agency who have responsibility to deal with such issues.

My assessment

23. The documents provided by the Council show it responded to Mr X’s complaints of smell nuisance and rats at the farm and surrounding areas according to the SOP. The Council contacted the farm owner, inspected the site, and advised Mr X to complete diary sheets. The Council does not consider there is a statutory nuisance based on the evidence officers have witnessed so far. The officers are satisfied with the pest control arrangements at the farm so do not require further action under the 1949 Act. The farmer had also removed the manure piles.
24. Mr X disagrees with the Council’s decision there is no evidence of a statutory nuisance and no further action needed to deal with the rats. But the decision is a matter of the officers’ professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
25. This is because officers have visited Mr X’s property and the farm to check on the alleged nuisances and considered the information provided by Mr X. The officers do not consider there is evidence of a statutory nuisance with odour at the farm and the pest control arrangements are satisfactory. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached this decision from the evidence I have seen.
26. The Council documents show it responded to Mr X’s concerns about effluence flowing into the watercourse and referred it to the Environment Agency to consider.

Complaint about the road

27. Mr X complained about the condition of the road by his property leading to the farm in January 2020. Mr X said the road was being used by large lorries to access the farm and the road unsuitable for such use. Mr X said the road surface was being damaged. Mr X also raised concerns about mud on the road from farm vehicles. Mr X said he occasionally removed the mud due to the nuisance caused to his own vehicles and property.
28. A highways inspector inspected the road in February 2020. The inspector said the road was unclassified, in a reasonable condition and did not need any repair work. The inspector arranged for the road to be cleaned twice of the mud coming from the pig farm and a nearby cattle farm. The Council says mud on roads is a problem occasionally found in rural areas. The inspector continued to monitor the road for several months but found no additional wear and tear.
29. The Council confirms the road is inspected each year as part of an annual survey of unclassified roads in the county. It has provided the annual inspection records showing no issues with the road and surface. The Council says it will continue to monitor the road annually and react to issues reported by members of the public.
30. The Council confirms the road has several signs on it including a blue one saying, ‘unsuitable for motor vehicle’. The Council says the sign is for information only and so not enforceable. It is simply there to provide information to drivers. There is also a white sign saying ‘access only’ which is another information sign. The Council considers the access to the farm by lorries is an acceptable use of the road.

My assessment

31. The Council considers the use of the access to the farm by lorries is acceptable. The documents provided shows the Council inspects the road each year and responded to Mr X’s concerns about the condition of the road. The Council arranged a clean of the road and officers found it did not need any repair work.
32. Mr X disagrees with the Council’s decision regarding the condition of the road. But the decision that it does not require any repair work is a matter of the officers’ professional opinion. As officers have visited the road, inspected it, and monitored for wear and tear I do not consider there is fault in the way the decision was reached. It is a decision the Council is entitled to make.

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Final decision

33. I am completing my investigation. I have found no evidence of fault by the Council in the way it responded to Mr X’s complaints of nuisance caused by a nearby farm.

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Investigator's decision on behalf of the Ombudsman