The Ombudsman's final decision:
Summary: Miss X complained about how the Council handled her complaint about her neighbours burning items in their garden. She said the fumes negatively affected her family’s sleep and heath. The Council was at fault for its poor communication and delays in acting on the evidence Miss X provided. The Council admits a failure in service. It has agreed to apologise, make a financial payment and provide a better service to remedy Miss X’s injustice.
- Miss X complained the Council failed to adequately investigate and take enforcement action against her neighbours for burning items in their garden that cause toxic fumes. She said the behaviour affects her sleep and her family’s health and wellbeing.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered Miss X’s complaint and the Council’s response.
- I have also considered the Council’s response to my enquiries.
- Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Environmental Protection Act 1990
- It is an offence to cause a statutory nuisance. If someone complains about nuisance from pollution, the Council should investigate and decide whether it is a statutory nuisance.
- It can choose to take informal action if something causes nuisance but is not a statutory nuisance, such as writing to the owner. A Council should have a policy or procedure to explain what it will do.
- The Council must be satisfied a nuisance exists. As in noise complaints the officer will come to an independent judgement taking into account the type of nuisance, duration, intensity and location to decide whether a statutory nuisance exists.
- If a Council identifies a statutory nuisance then an Abatement Notice should be served on the person responsible. The Council can then negotiate with that person to try and get the problem remedied, but there should be a realistic prospect of a resolution.
- If the problem persists the Council should attempt to gather further evidence to demonstrate a breach of the notice. If the evidence shows the Notice is still not being complied with, then court proceedings should be started.
Miss X complains about the burning
- In 2019, Miss X reported to the Council that her neighbour was burning rubbish in his garden and the fumes were affecting her family. Miss X submitted formal nuisance requests in July and October 2019. In October, she submitted diary sheets recording her neighbour’s activities. When she considered the Council was not taking action, she lodged a complaint in November 2019.
- Soon after Miss X lodged a complaint, the Council visited the site and spoke to Miss X and her neighbour. The Council responded to Miss X’s complaint on 12 November. It summarised what action the Council had taken which included the officer speaking to Miss X’s neighbour. It advised Miss X to contact the Council again if the issue was not resolved.
- In December, the Council visited the site again and said it did not witness any evidence of burning or noise nuisance at this time. Miss X said the burning had stopped.
- In early 2020, Miss X said the burning and the smoke nuisance started again. She contacted the Council several times but did not receive a response. The Council said this was because the emails were arriving in an officer’s junk mail.
- In February, she asked the Council to escalate her complaint to stage 2 of the Council’s complaint procedure. The Council said that while Miss X’s request was acknowledged, due to a high volume of cases, it was not possible to allocate an investigator until May 2020. During this period, Miss X continued to submit evidence to the Council and the Council acknowledged this.
‘The Council must witness the smoke’
- In February and March, the Council offered to visit to witness the burning and smoke. Miss X said she would contact the Council when it was occurring otherwise it would be a wasted visit. The evidence I have seen suggests that because it occurred at night, the officers were not available to visit then.
- The Council said Miss X did not contact officers on the phone number provided and therefore intended to close her case. Miss X said she did not call on that specific weekend because there was no burning. She asked the Council to keep her case open until it is resolved.
- I have seen evidence from May 2020 which suggests the Council did not have a complete record of its actions/visits/letters sent in relation to Miss X’s case.
- The Council contacted Miss X and said it could only progress her case if officers witnessed the issues when they were occurring. It said, due to Covid-19 restrictions, officers could only do a ‘drive-by’. The Council said it was looking at setting up a call out service but only on a temporary basis. It asked Miss X for a recent history of events to target this service. Miss X sent the Council a list of dates and times for the past week. This showed that all occurrences happened after 9pm.
- In June, the Council responded to Miss X’s stage 2 request. It apologised for its poor communication with Miss X. It explained this was due to a number of her emails going to the officer’s junk folder. The Council reported that it had now advised all officers to check junk folders on a regular basis.
- The Council explained that it could not take further action against Miss X’s neighbour until the Council has witnessed the problem. It said it had arranged an out of hours service, but Miss X did not contact it. The Council said it was suspending its complaint service due to Covid-19 and referred Miss X to the Ombudsman.
Council’s response to my enquiries
- In response to my enquiries, the Council was unable to provide evidence it had taken appropriate action in relation to Miss X’s case. It admitted that it should have sent a letter to the neighbour for the nuisance he was causing, but this did not happen. The Council accepted there has been a failure in service. It said it remained committed to taking the matter forward to a satisfactory resolution.
- I also requested evidence that the Public Protection team had contacted the Community Safety and Anti-Social behaviour team about Miss X’s case. The Council admitted that it had not been raised as an anti-social behaviour issue and apologised for this oversight.
- The Council was at fault for the way it handled Miss X’s case. Miss X provided the Council with nuisance diary sheets but because the Council did not witness the smoke, it would not take enforcement action against Miss X’s neighbours.
- Given the burning took place sporadically and always at night, the Council could have put in place a call out service until it was satisfied it had witnessed what Miss X was complaining about. Only then, could officers have made an informed judgement as to whether the smoke from the burning was a statutory nuisance or not. Instead, the Council offered limited call out dates and then closed Miss X’s case when she did not call.
- During the course of my investigation, the Council admitted it should have sent Miss X’s neighbours a letter asking them to refrain from the activity but this did not happen.
- The Council’s failure to take appropriate action meant that Miss X and her family suffered an avoidable injustice. They have lived with the smoke and fumes from their neighbours’ burning for over 18 months. The Council did not complete its investigation or reach a satisfactory resolution to Miss X’s complaint.
- I have recommended the actions in paragraph 30 in line with the Ombudsman’s Guidance on Remedies. The recommendations recognise the injustice Miss X and her family have experienced over a prolonged period and suggest a way forward for the Council to reach a satisfactory resolution.
- Within 4 weeks of my final decision, the Council has agreed to:
- Apologise to Miss X for failing to properly investigate her complaint and take appropriate action.
- Pay Miss X £1000 for the loss of amenity caused by its delay in taking effective action.
- Arrange a bespoke call-out service for Miss X to use as and when the burning takes place. This should remain available until the Council has witnessed the smoke to make a proper decision as to whether it is a satisfactory nuisance.
- I have completed my investigation. The Council was at fault for failing to investigate properly and to take effective action against Miss X’s neighbours. This caused Miss X and her family an avoidable injustice.
Investigator's decision on behalf of the Ombudsman