Summary: Mr X complained that the Council failed to properly consider complaints he made of an odour nuisance. He also complained that officers abused and mis-treated him. We found no fault in the Council’s actions and no evidence that officers abused or mis-treated Mr X.

The complaint

1. Mr X complains the Council failed to properly investigate an odour nuisance that he reported from a neighbouring premises. Mr X complained that the failure to act on the nuisance amounted to abuse, discrimination and Council officers were gaslighting him. The nuisance continued as a result.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’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 considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
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

Environmental Protection Act 1990

6. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
7. Activities a council might decide are a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.
8. To count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.
9. The Act does not define a level at which something becomes a statutory nuisance. The law relies on suitably qualified officers to gather evidence and apply their judgement. It has been established in law that a potential nuisance should be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the someone because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
10. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay issuing an abatement notice for a short period, to try to address the problem informally.
11. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.

Section 82 of the Environmental Protection Act 1990

12. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
13. This process does not involve the council, but it is good practice for councils to tell complainants about their right to take private action.

What happened

14. Mr X contacted the Council in December 2023 to report an odour nuisance from a neighbouring unit, at premises Mr X shared with them.
15. The Council acknowledged the report and explained the service that environmental health officers provided. It told Mr X to call the service when he was being affected. It stated officers aimed to return the call as quickly as possible and to visit while the noise, or nuisance, was occurring. It aimed to respond within an hour but this was not always possible. It stated if there were a number of occasions when the council was called but officers could not attend, they would prioritise calls in future.
16. The Council visited Mr X proactively around ten days after his initial complaint. The officer obtained information from Mr X about the situation. They watched video evidence that Mr X had. The officer did not witness a nuisance at the visit, but, based on Mr X’s description they noted the description of odour was ‘pleasant’ and would not constitute a statutory nuisance.
17. Following correspondence with Mr X, the Council stated, as no nuisance had been witnessed and the smell described was pleasant, it would not take further action. The Council advised Mr X of his right to seek a private prosecution against his neighbour.
18. Mr X wrote to the Council several times in January alleging drug taking and anti-social behaviour by his neighbour.
19. At the end of February Mr X called the service to report the nuisance was occurring. He stated his neighbour was burning incense. As the nuisance had stopped officers did not attend but logged the report.
20. In early March Mr X called the service to make reports. On the first call he reported cigarette smoke, and on the second he reported an odour which was a mixture of smoking odour and chemical spray to mask the smell. No contact details were left in the first message. On the second call officers called Mr X several times and spoke to him. They established the nuisance was no longer happening and logged the details. They advised Mr X to call again if the issue reoccurred.
21. Officers spoke to Mr X over the phone several times in Mid-March. They stated that officers would not visit if the nuisance had stopped. They gave advice to report the Anti-Social Behaviour (ASB) and harassment Mr X had described to its Safer Communities Team and provided contact details.
22. Mr X expressed dissatisfaction with the service and officers provided details of the complaint process. Mr X was also reminded that he could consider a private prosecution.
23. Towards the end of March Mr X called the service to report a further odour nuisance. He stated he believed the odour was laced with poison to harm him. The Council contacted Mr X by telephone the following day and made a proactive visit. An officer viewed a video Mr X took. Mr X explained he was frustrated by the inaction of the Council and that each time he called the nuisance had gone when officers called back. The officer explained the Council had so far not witnessed a nuisance, so they had no grounds to act or to warn the neighbour. He explained the process the council follows and reminded him how he could address concerns about ASB and his safety.
24. Overall, the Council noted Mr X reported an odour nuisance 7 times between December and March 2024. However, officers never observed smoke or odour. As a result, it decided it could not take action under the Environmental Protection Act 1990.

Mr X’s complaint

25. Mr X complained in April 2024 about the Council not having substantiated his complaint and about the conduct of the noise nuisance officer he dealt with. In its response the Council summarised the actions it had taken and found that officers had been responsive. It stated there was no action its environmental health officers could have taken. It found no evidence of any abuse, failings or conduct issues.
26. The Council also expressed regret at hearing Mr X had been the subject of abuse from his neighbour and it reiterated that Mr X could contact the Council’s community safety team to offer advice and support.
27. Mr X escalated his complaint and raised an issue about contact with another officer. An officer spoke with Mr X and sent a further response. In its response, the Council largely re-iterated its position about its decisions in Mr X’s case. It noted that Mr X was pursuing his own prosecution under Section 82 of the of the Environmental Protection Act 1990. It stated Section 82 of the Act was created in recognition that some nuisances would be of a duration, characteristic or time that would make it almost impossible for a local authority to evidence. In such circumstances it allows members of the public to bring their own case before a magistrate. The Council noted that, with odour nuisance it was more difficult to use remote information gathering (such as recordings that could be used for noise or light pollution) so, it largely relied upon officers witnessing a nuisance.
28. The Council noted Mr X had not shared any evidence that supported his allegation that officers had ‘gaslit’, abused or mis-treated him and it found the officers had been consistent and had responded to his reports. As a result, the Council did not uphold Mr X’s complaint.
29. Mr X told us, since the reports and his complaint to the Council he had been successful in private proceedings against his neighbour under Section 82 of the Environmental Protection Act 1990. He believed this was evidence that the Council failed to properly handle his complaints of nuisance.

What should have happened

30. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with a council’s decision.
31. The law does not define or set levels at which something set out in Section 79 of the Environmental Health Act 1990 is ‘prejudicial to health or a nuisance’ (a statutory nuisance). Rather, it relies on the judgement of local authority environmental health officers.
32. The role of an environmental health officer is to take reasonable steps to investigate a concern that someone raises and to reach a judgement about whether something is a statutory nuisance. If they find that it is, they must take action.
33. I found the Council did take reasonable steps to investigate Mr X’s reports and there was no fault in its approach. I say this because the officers contacted Mr X and explained the procedures for making reports and explained how officers would respond. They acknowledged and responded to his reports, spoke to him on the phone and carried out proactive visits. These were actions in line with the Council’s procedures.
34. We cannot determine if the decisions that officers made when they visited (that there was no nuisance present) were right or wrong. Unfortunately, on most of the occasions that Mr X made reports, the nuisance had gone by the time officers made contact, so visits were not carried out. I understand it was frustrating for Mr X. However, the Council took the view, because this was an odour issue, that witnessing it was required to enable an abatement notice to be issued. This was a judgement that officers were entitled to take. It does not constitute fault by the Council.
35. I note Mr X achieved a successful private prosecution. However, this does not in itself mean the Council did not consider Mr X’s reports properly. As I have stated above, our role is to consider if a council has followed the correct process, considered all relevant information when making decisions, and explained its position clearly. I found there was no fault in the process followed or action taken by the Council and it explained its decisions properly.
36. There is no evidence that, in advising Mr X of its view on the nuisance he reported, officers sought to abuse or manipulate or mistreat Mr X.

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Decision

37. I find there was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman