Summary: Mrs X complained the Council failed to take appropriate action against a neighbouring property which stores and spreads digestate. There was no fault in the Council’s actions.

The complaint

1. Mrs X complained the Council failed to take action against activities carried out by a neighbouring property in relation to the spreading and storage of digestate.
2. Mrs X says the fumes and smells caused by the digestate over the past 20 months has made her and many of her neighbours ill.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as Public Health England or the Environment Agency. (Local Government Act 1974, sections 25 and 34A, as amended)
4. 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)
5. 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

6. I spoke to Mrs X and considered the information she provided. This included correspondence with the Council and other public bodies and photographs she took.
7. I made enquiries of the Council and considered the information it provided in its response. This included correspondence with Public Health England and the Environment Agency, dates of site visits, the Council’s statutory nuisance investigation, including details of test results, correspondence with a specialist toxicology consultant and complaints correspondence.
8. I have written to Mrs X and the Council with my draft decision and considered the comments I received before I made my final decision.

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What I found

9. Under section 79 of the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance.
10. The Act defines a number of matters as being a statutory nuisance including:
• any premises in such a state as to be prejudicial to health or a nuisance;
• fumes or gases emitted from premises so as to be prejudicial to health or a nuisance; and
• and dust, steam, smell or other effluvia arising on business premises and being prejudicial to health or a nuisance
11. Prejudicial to health is defined as “injurious, or likely to cause injury, to health”.
12. The courts have held the test of whether something is prejudicial to health is objective and the person’s particular circumstances, or increased sensitivity to something cannot be taken into account.
13. If a council identifies there is a statutory nuisance it must serve an abatement notice on the person causing the nuisance.
14. Under section 82 of the Environmental Protection Act 1990, a member of the public may bring a claim of statutory nuisance in the magistrates’ courts.

Anaerobic digestion

15. Anaerobic digestion is a chemical process where micro-organisms are added to substances such as slurry and food waste to break it down into biogas and digestate. Digestate can be used in liquid or solid form on farming land as fertiliser.
16. Some types of digestate and some storage facilities require a permit from the Environment Agency. Where the storage is deemed the ‘final stage of storage’ ie, the final point before being spread, the facility does not need a permit. A facility also does not need a permit if the digestate does not come from animal products.
17. Where there are complaints about nuisance from the digestate, for example complaints about odour or noise, the Council is responsible for investigating these as it would any other potential statutory nuisance.
18. The Environment Agency has responsibility for enforcement action against any pollution to land or water.

What happened

19. Mrs X lives in a rural area which consists of a small number of properties mainly farms.
20. In January 2017, the operator of Farm D began to import quantities of digestate to store in an existing slurry pit and to later mix and spread on nearby land. Because the storage on Farm D was considered the final stage of storage, and the digestate did not come from any animal products, Farm D did not require a permit from the Environment Agency.
21. Almost immediately, the Council began to receive a large number of complaints from the nearby properties about the odours and noise coming from Farm D. The nature of the complaints soon changed to include details of health complaints, including trouble breathing, headaches, burning throats, tongue fissures, increased phlegm, dizziness and other associated problems.
22. In January, the Council began to carry out site visits. By August 2017, it had carried out 50 visits. The purpose of these was to follow up complaints from residents and to monitor odours when Farm D was mixing/agitating the slurry and digestate. Apart from one site visit on 18 April, when statutory nuisance was identified which related to spreading slurry, officers found no odour or other statutory nuisance relating to the storage of digestate in the slurry pit on Farm D.
23. During the site visits, officers carried out 95 ‘sniff’ tests. Officers did not consider any of these to be at the level of a statutory nuisance.
24. In February 2017, residents called the local fire service because of concerns about toxic fumes. A specialist fire services officer tested for certain harmful gases but none were detected.
25. On 2 March 2017, the Council carried out a meeting with Public Health England and one of its specialist service areas. The specialist service area provided the Council with advice on dealing with odours and harmful emissions from Farm D.
26. Between 10 and 18 March, the Council carried out an eight day correlation exercise to try to determine if links could be established between activity at Farm D, complaints received, diary evidence from residents, weather reports and officer site visit assessments.
27. On 30 March, the Council and the Environment Agency visited one of the anaerobic digester plants which provided Farm D with its digestate.
28. Also throughout March, the Council had the following communications with the Environment Agency:
• it sought advice in relation to sample results in relation to tests on local water supplies. However, the Environment Agency scientist who analysed the samples concluded that because the test results related to water quality as opposed to exposure to chemicals from air, which was causing issues to the residents, the water samples could not help in assessing these effects;
• it asked for advice on odour and gas complaints from the release of particular chemicals from liquid digestate; and
• it asked for information about digestate storage permit rules.
29. From 25 April to 19 May 2017, the Council carried out portable gas testing directly over the slurry pit for a period of weeks. 375 samples were taken. The Council stated the period including loading and emptying activities, when the pit the full or nearly full and during a wide range of temperatures, atmospheric conditions and wind directions. The Council also carried out 45 additional odour assessments and carried out water sampling at the properties of two local residents.
30. Between 3 and 17 May 2017, the Council carried out a second correlation exercise and air quality monitoring assessments. The Council said that during this period no new digestate was loaded into the pit. However, towards the end of the period an artic load of digestate was unloaded into the pit. The Council therefore carried out additional monitoring on that day both before and after the unloading of the digestate. The Council stated that otherwise, the pit was only disturbed during pumping out for land spreading.
31. In September 2017, the Council began a 12 month period of air quality monitoring at one of the properties closest to Farm D.
32. The Council produced a report which detailed the methodology used, details of multi-agency working and the raw results of all the tests it had carried out. The report concluded:
• gas monitoring, air monitoring, odour assessments and site visits had all failed to detect levels of gases at a level to cause harmful toxicological effects;
• some residents were experiencing a range of symptoms but these may be as a result of an individual’s reaction to a particular odour even when the substances themselves were not hazardous or harmful to health;
• there was no specialist evidence to link the residents’ symptoms to the activities at Farm D;
• some residents had built up a higher level of sensitivity to the digestate and slurry which had led to them being able to detect odours when officers visiting the site could not. Case law had demonstrated that statutory nuisance must be determined in the context of an average person. Therefore, hypersensitivity did not offer greater standards of protection;
• only the two properties closest to the Farm were at risk of experiencing odour from the Farm and Mrs X did not live at either of these properties.
33. The report stated that if any materially different activity started at Farm D, or another agency reported issues to the Council, it would carry out a further case review.
34. On 5 September 2017, the Council met with Mrs X and other residents to discuss the results. The Council informed residents there was no evidence of statutory nuisance.
35. In October 2017, Mrs X and other residents appointed a solicitor to act on their behalf with the Council. The solicitor contacted the Council and referred to the considerable evidence residents had submitted to support their opinion Farm D was causing a statutory nuisance. This included:
• daily logs of the health effects from the activities at Farm D;
• the results of privately commissioned tests; and
• comments from a lichenologist regarding pollution affecting lichen.
36. The solicitor also said some of the tests carried out by the Council showed there were sufficient quantities of some gases to adversely affect the residents’ enjoyment of their properties.
37. The Council responded on 6 November 2017. It said:
• it had taken all reasonably practicable steps to investigate whether there was a statutory nuisance but had not established there was such a nuisance;
• following the solicitor’s letter, it had sent the plant samples to a specialist agency which had identified the marks on the plants were the result of a common plant disease unrelated to the activities at Farm D;
• the private tests contained no toxicology assessment to assess the impact on human health and its conclusion was “there is no clear cause of what is the cause of the observed health effects”; and
• the Council’s test results showed the presence of gases but this did not, in the Council’s opinion, lead to the conclusions that residents’ enjoyment of their properties was adversely affected.
38. At the end of 2017, Mrs X’s GP referred her to a specialist NHS toxicology clinic at a London hospital. Mrs X’s appointment was in January 2018 when she was examined by a consultant physician and clinical toxicologist. Mrs X provided the consultant with information including a summary of her symptoms and medical statements from other residents, and the results of the test she and other residents had privately commissioned. The consultant also had copies of information Mrs X had previously submitted to another doctor who worked at the toxicology clinic.
39. The Council provided the consultant with a copy of its draft report.
40. The consultant concluded the symptoms Mrs X experienced did not relate to exposure of “toxicological significance”. The consultant wrote to the Council and Mrs X in April 2018 with this outcome and discharged her from the clinic.
41. During 2018, the Council carried out a further eight site visits. It detected no statutory nuisance. It also met with the Environment Agency on four occasions and Public Health England once. In October 2018, the Council visited a second anaerobic plant supplying digestate to Farm D.
42. On 1 October 2018, Mrs X complained to the Council. The Council responded and said it had not found any evidence of statutory nuisance. It said the toxicology consultant supported the outcome of tests that there was no link with the symptoms Mrs X was experiencing and the slurry pit at Farm D. The Council refuted Mrs X’s statement that the testing which took place in May 2017 was flawed because the pit was empty. It said during this monitoring period the pit was filled, emptied and the digestate spread on the fields. The Council said the 12 month air monitoring period which started in September 2017 had now concluded and it would communicate the findings to the owner of the property where it took place.
43. Following the final stage of the Council’s complaints process, Mrs X complained to the Ombudsman.

My findings

44. We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused. Nor is it the role of the Ombudsman to interpret or validate the results of testing carried out by the Council or other bodies.
45. The Council had a duty to take reasonable steps to investigate complaints of potential statutory nuisance. After receiving complaints of odour and health issues from residents living close to Farm D, the Council carried out extensive and prolonged testing in the locality. It corresponded and worked with other public bodies and where it felt appropriate, called on their specialist areas of expertise to assist in interpreting test results. When Mrs X was referred by her GP to a specialist toxicology consultant, it took their opinions into account. On the evidence so far, there was no fault in the Council’s actions.
46. Mrs X contests how the tests were carried out and disputes the validity of the results. She has privately arranged for other testing to be done and sent the results to the Council. The Council has considered these and provided a response to Mrs X. On the evidence so far, there was no fault in the Council’s actions.
47. The Council has informed Mrs X the case remains ongoing and if there are any material changes in the circumstances, it will consider these. These are appropriate actions to take.
48. In any event it is also open to Mrs X to take her own action against the neighbouring property under S82 of the Environmental Protection Act 1990.

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Final decision

49. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman