Summary: Miss X says the Council has failed to act on her reports of odour and flies from a maggot farm near her home. We did not find any evidence of fault by the Council and therefore we have ended our consideration of this complaint.

The complaint

1. The complainant, who I shall call Miss X, says the Council has failed to act on reports of odour and flies from a maggot farm near her home. She says the farm has breached the conditions of its permit. Miss X says these issues are affecting her enjoyment of her home.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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)
3. 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)
4. 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

5. As part of my investigation I discussed the complaint with Miss X and considered information she provided. I made enquiries of the Council and considered its response and documents its provided. I also had regard to the relevant government guidance. I set out my initial thoughts on the complaint in a draft decision statement and considered Miss X’s comments in response.

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What I found

Process Guidance Note 6/05, Statutory Guidance for maggot breeding installations

6. This document gives guidance on the conditions appropriate to control the emissions into the air from maggot breeding installations.
7. Section 4.8 explains that permits for maggot breeding farm installations should include a condition to prevent or reduce the escape of offensive odour across the site boundary.
8. Section 4.9 says when imposing the above condition local authorities should take into account that there maybe incidents where offensive odour emissions occur beyond the control of the operator. It says allowances should be made for such occurrences if the operator can show that they have taken all reasonable steps to prevent odour release.
9. Section 4.10 says local authorities should investigate incidents where offensive odour escapes the site boundary to establish if there has been a breach of any boundary odour condition. If there are two such incidents in a 12 month period, local authorities should look closely at whether the operation was taking all reasonable steps to prevent such occurrences.
10. Section 4.12 says that the assessment of any offensive odour should be as perceived by the local authority regulator and should take into account the nature of the odour.
11. The guidance also provides a model permit which details the format and information the permit should include.

Environmental Permitting, General Guidance Manual on Policy and Procedures for A2 and B Installations

12. The Council says that its procedures for investigating issues relating to environmental permitting follow the information in this guidance. The Council says it:

• logs all complaints of breaches of environmental permits;
• tries to visit every month during the main maggot breeding season to see if there are significant breaches of compliance; and
• liaises with other agencies that visit the site including Trading Standards.

Background

13. The maggot farm Miss X complains about has been in operation at its current site for over three decades. I understand there have been complaints about odour during this time and that new measures have been implemented at the site in the past 10 years. Also in the vicinity of the farm are three poultry farms.
14. In 1991 a permit was issued for the farm with a condition that ‘emissions into the air shall be free from offensive odour as perceived by the Local Enforcing Authority Inspection for any location more than 20 metres from any process, building or ancillary building, or beyond the site boundary, whichever is the shorter distance’.
15. Miss X moved to a property located over 20 metres from the farm.
16. In 2018 Miss X reported occurrences of odour from the farm and excessive flies in the area. The Council investigated by making announced and unannounced visits to the farm. The visits did not find any breaches of compliance or building defects that would have contributed to either matter. Miss X also contacted her local councillor for assistance.
17. Miss X submitted a complaint to the Council in December. She included details of incidents of excessive odour and copies of reviews for holiday accommodation located within 60 metres of the farm which refer to excessive odour.
18. The Council responded in January 2019. It reiterated that visits to the farm had not identified any incidents of excessive odour or defects that would have led to excessive flies in the area. The response attributed the increase in flies to works at a nearby woodland that disturbed rotting vegetation.
19. Miss X escalated her complaint to stage two in late January questioning why the Council had concluded the flies were caused by woodland works and how it had investigated her reports of excessive odour.
20. In 2019 the Council issued the farm with a new permit that was in keeping with the current guidance. This included a condition that the operator should prevent offensive odour beyond the boundary of the site as perceived by the regulator. It also contained another condition requiring waste from the farm to be removed in a sealed waste skip.
21. Meanwhile Miss X continued to report incidents of excessive odour. Reports were made in March, April and May. In response the Council visited the farm but found no evidence of excessive odour or flies. It found the farm to be in a satisfactory state.
22. In July the Council responded to Miss X’s stage two complaint. It concluded officers had investigated her complaints about odour diligently. It explained there were no grounds for the farm’s permit to be withdrawn as no enforcement notices had been issued and the farm was generally compliant. It also set out the actions it had taken to investigate matters. I note the officer who replied had witnessed odour themselves on two occasions although the Council has advised the officer is not trained in assessing odour.
23. Miss X continued to report excessive odour and flies throughout the remainder of 2019. Documents provided by the Council showed it visited the site in response, albeit not always on the same day. It found no evidence of excessive odour or problems at the farm that would contribute to odour issues or flies.
24. On 27 January 2020 the Department for Environment, Food and Rural Affairs (DEFRA) sent a vet to inspect the farm. At the time of the visit five maggot breeding pits were operational. On 31 January Trading Standards visited the site in connection with the Animal By-Products license that it grants the farm. Eight maggot breeding pits were in operation. The visits did not note any offensive off-site odour.
25. Reports of excessive odour have continued to be made by Miss X thorough 2020. The Council was unable to the visit the farm during the Covid-19 lockdown but it visited the site in response to reports both before and immediately after the lockdown ended. Again, the reports provided by the Council show no evidence excessive odour was found nor any defects that would contribute to odour or excessive flies.
26. In July the Council received reports of maggots in a stream to the rear of the farm. It investigated and found evidence supporting the report. This amounted to a breach of the farm’s permit and so the Council issued an enforcement notice to the operator.
27. Also in July the Council visited in response to reports of odour. It found evidence of a slight odour and recommended the operator refilter the beds to keep them moist in the hot weather.
28. Further reports of odour were made in August but again inspections found no evidence. I note that on one occasion the operator said they were considering introducing a second odour management system to help with hot weather.
29. Also, in August the Council arranged for an independent inspection of the site by an agricultural consultant. The inspection considered the measures used by the operator to manage odour from the farm. It concluded operations at the site were satisfactory.; It also included recommendations for the operator to help improve the satisfactory conditions at the site and to prevent any deterioration.
30. In its response to my enquiries the Council said;

• It has visited the farm in a series of announced and unannounced inspections of the farm in response to reports of excessive odour. It has not always been able to visit at the time reports are made owing to a lack of resources and having no out-of-hours service.
• It has not witnessed any incidents of offensive odour from the farm and explained how it had arrived at this decision. For this reason, there have not been any breaches of the farm’s permit or any reasons to revoke the permit.
• It has taken enforcement action against the farm when it has witnessed other breaches of its permit.
• It remains of the view that there is no evidence the problem of excessive flies in the area is caused by the farm. It says the local area includes woodland which can attract flies because of decaying animals.

31. In October Miss X contacted me to advise that the operator had accused her of making complaints about the farm. Miss X says only the Council could have given the operator this information.

Analysis

32. It is not for the Ombudsman to substitute his judgement for that of the Council’s officers. Instead he examines the process leading to the Council’s decisions for evidence of fault.
33. In its response to Miss X ‘s second stage complaint, the Council explained how it has investigated her reports. In its response to the Ombudsman the Council has provided a more extensive account of its investigation and the reasons its officer concluded no breaches of the farm’s permit have occurred regarding odour and flies.
34. I do not consider there has been fault with how the Council has investigated reports of excessive odour. This is because the Council:

• has carried out inspections of the farm in connection with the reports of excessive odour;
• has had regard to the relevant guidance when considering complaints about odour; and
• sought an independent view on the issue of excessive odour from the farm.

35. Miss X says the Council should revoke the farm’s permit because there have been more than two incidents of excessive odour from the farm in the last 12 months. I agree Miss X has made more than two complaints of odour during this timeframe. However, the Council has not witnessed any incidents which it considers amounts to excessive odour. The permit issued to the farm and the relevant guidance both state that a determination on this matter is for the regulator, in this case the Council, to make. As I have found no evidence of fault in how the Council has investigated this matter, there are no grounds on which I can question the merits of its view.
36. I note that Miss X says one officer from the Environmental Health department has witnessed odour outside the boundary of the farm and therefore action should be taken. However, the Council says the officer involved is not trained in assessing if an odour is excessive and so is not able to make a determination on the matter. I do not consider this matter is evidence of fault by the Council.
37. Questions have been raised about the permit issued to the farm. Miss X says the permit is not as robust as earlier permits or other permits she has seen for similar facilities. For this reason, Miss X says the permit does not offer adequate protection for residents. While I appreciate this is Miss X’s view, as the permit meets the current guidance, I cannot find the Council at fault.
38. Furthermore as highlighted in the Council’s response to my enquiries, the current permit requires the farm to produce fewer emissions and to use a more efficient woodchip filter base. For this reason I cannot conclude the current permit offers less protection to residents than earlier permits.
39. I also do not find the Council at fault over its handling of Miss X’s reports of excessive flies. While it cannot be disputed that Miss X has had problems with flies, the Council inspected and found no evidence the farm was the source of the problem. I appreciate Miss X disagrees however the Council has identified other potential sources, including the nearby woodland.
40. Miss X suggested the Council’s officer has not been impartial when investigating matters and has favoured the farm. I cannot agree based on the evidence presented to me. The inspections and the independent review failed to identify any grounds for taking action against the farm regarding odour or flies. Furthermore, when the Council has found evidence of breaches of the farm’s permit, such as the incident with maggots being found in a nearby stream, it has taken action and issued an enforcement notice.
41. Lastly Miss X says the operator of the farm is aware she has complained to the Council and has targeted her as a result. She says the Council must have told the operator she complained. Although she has provided no evidence available to support her view, I understand why she might be of this opinion. However, I note from correspondence between Miss X, her local councillor and the Council that this matter also arose in 2018. The correspondence refers to the operator contacting several residents to try and identify those who had reported concerns about the farm. It would therefore seem to me that the operator has conducted his own enquiries to ascertain the identity of those raising concerns about the farm, rather than the Council divulging the details.

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Final decision

42. I have ended my investigation of this complaint as I have not found any evidence of fault by the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman