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Canterbury City Council (17 012 667)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 05 Jul 2018

The Ombudsman's final decision:

Summary: The Ombudsman does not consider there is fault in the way the Council considered the complainant’s reports regarding odour from a local brewer.

The complaint

  1. The complainant whom I shall refer to as Mrs X, complains that the Council did not properly investigate her complaint about smells from a neighbour’s property. She says that the neighbour brews beer more than once a week to sell and this causes odours which make her feel sick.

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What I have investigated

  1. I have investigated matters from 2017 when Mrs X complained again. I have not investigated matters from 2014-16 for the reasons I explain in paragraphs 17-18.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. I have also discussed the complaint with the complainant and considered her comments on my draft decision.

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What I found

  1. Mrs X reported smells coming from a neighbour’s house in October 2017. She said that he brewed beer on small scale as a business and that the smells made her feel sick. She sent in diary sheets which showed the smell occurred once or twice a week for between 4- 6 hours.
  2. The Council’s Environmental Protection officer visited on a day the brewing took place. She witnessed the smell. However, Mrs X says that the officer only visited for 15 minutes and said that she thought the smell was pleasant.
  3. The officer’s notes of the visit show that she considered the smell “not unpleasant”. She also said that after a while she got used to the smell and did not notice it. The officer wrote to Mrs X the same day and confirmed that after discussing the issue with the senior officer, the Council did not consider the smell was a statutory nuisance.
  4. Mrs X complained the Council had not properly assessed the smell. She said a visit of only 15 minutes was not enough. She was affected for several hours. She did not think the Council should allow a business to continue without planning permission.
  5. The Council responded to Mrs X’s complaint. It said that because the brewing mainly occurred once a week for a few hours, it was not sufficient to be a statutory nuisance. The Council also said that a planning officer had visited a few years ago but considered that there was so little being brewed that planning permission for a change of use of the building was not needed. The Council said that if the frequency of brewing increased Mrs X could report it to the Council and it would consider it again.
  6. Mrs X complained to the Ombudsman that the Council failed to properly consider the impact of the smell from the neighbour’s activities. She felt the Council was wrong to say it was a short period, as it was 4-6 hours a week and sometimes more.
  7. The Environmental Protection Act 1990 places a duty on local authorities to investigate complaints of possible statutory nuisance. The Council has investigated, but its professional judgment was that there was no statutory nuisance.
  8. I asked the Council whether it had considered the duration as Mrs X said the Council appeared to believe the brewing occurred for one hour. The Council says it accepted the brewing occurred over 4-6 hours according to Mrs X’s diary sheets but as this was only once a week it did not assess that the frequency this occurred was a statutory nuisance. Mrs X has explained that her neighbour has carried out brewing more than once a week, sometimes. However, the Council has assessed that this is not a regular occurrence. It has suggested that Mrs X could raise it with the Council again should the frequency or duration increase. It appears that the brewing has on occasion stopped and then started again. I consider that the Council has carried out an assessment based on the facts at the time, and I do not see there is apparent fault in its approach or in assessment. I do not consider that the length of the officer’s visit was necessarily too short as she was able to witness the smell at the time brewing occurred, and come to a view. She also discussed the issue with a senior officer and her view that there was insufficient evidence of a statutory nuisance was confirmed.
  9. I also asked the Council if it considered the impact on Mrs X’s health because the Environmental Protection Act 1990 (EPA) says that a smell or odour may be prejudicial to health or a statutory nuisance. Mrs X reported feeling sick and being stressed. The Council responded that “prejudicial to health” in the EPA means injurious to or likely to cause injury to health. The Council did not consider that the reported impact on Mrs X met this criterion. I do not consider that there is fault here.
  10. With regard to the potential planning enforcement issues the Council says it has not reinvestigated since May 2016 as Mrs X has not reported an intensification of the activities. However, the Council says that it is willing to revisit the matter if Mrs X reports that the frequency and duration of brewing have increased.

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Final decision

  1. I have not found fault so I have completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

  1. 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)
  2. Mrs X had complained to the Council in 2014 regarding smells from a small brewing business by a neighbour. The Council did not consider the smell amounted to a statutory nuisance. I do not consider there are good reasons to investigate this matter now. Mrs X could have raised the matter in 2014.

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Investigator's decision on behalf of the Ombudsman

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