The Ombudsman's final decision:
Summary: Mr and Mrs C complained the Council failed to properly respond and take appropriate action in response to their reports of nuisance from dust from the use of a neighbouring area of land as an overflow car park. Mr and Mrs C explained they could not enjoy their garden or open their windows and their property and car were regularly covered in dust. We have found fault by the Council in not investigating whether a statutory nuisance was being caused. We consider the agreed actions of an apology and an assurance about how future reports will be treated is enough to provide a suitable remedy.
- The complainants, whom I shall refer to as Mr and Mrs C, complain the Council failed to properly respond and take appropriate action in response to their reports from June 2019 of nuisance from dust from the use of a neighbouring area of land as an overflow car park.
- Mr and Mrs C say because of the Council’s fault, they cannot enjoy their garden or open their windows and their property and car are regularly covered in dust.
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)
- 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)
- 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)
- 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 read the papers provided by Mr and Mrs C and discussed the complaint with them. I have considered some information from the Council and provided a copy of this to Mr and Mrs C. I have explained my draft decision to Mr and Mrs C and the Council and considered the comments received before reaching my final decision.
What I found
Background and legislation
- Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include:
- noise from premises or vehicles, equipment or machinery in the street
- smoke from premises
- smells from industry, trade or business premises
- artificial light from premises
- insect infestations from industrial, trade or business premises
- accumulation of deposits on premises
- For the issue to count as a statutory nuisance, it must:
- unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
- injure health or be likely to injure health.
- There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets and undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
- Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
- Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
- A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the Environmental Protection Act 1990.
- In certain cases, people who have used the best practicable means to stop or reduce the nuisance may be able to use this as grounds for appeal or a defence if prosecuted. Best practicable means involves having regard to local conditions and circumstances, the current state of technological knowledge and financial implications.
- Mr and Mrs C’s house is next to an area of land which is leased to the Council for sports and public open space. It is sometimes used as car parking. The surface is a mix of crushed stone aggregate and MOT Type 1 stone.
- The Council received historical reports of dust from Mr and Mrs C between 2010 and 2016. These were:
- 23 April 2010 - dust from work being carried out at the site to fill in a pond
- 25 July 2014 - complaint about dust from the car park
- 22 July 2015 – report of dust from the car park
- 19 July 2016 – report of dust from the car park
- The Council says it received no further reports from Mr and Mrs C until 19 May 2020.
- In response to the above report, the Council visited the site on 1 June. The Council wrote to Mr and Mrs C the same day to confirm it was investigating the feasibility of creating a series of speed bumps across the full width of the car park to reduce vehicle speeds and the volumes of dust being generated.
- The Council has confirmed the works to introduce speed humps was completed by 29 July 2020.
- The Council says it has received no reports from other residents about dust from this site. The Council has also confirmed it has not received any further reports of dust from Mr and Mrs C following the installation of the speed humps.
- The Council has confirmed to the Ombudsman that it has not investigated whether the dust is causing or likely to cause a statutory nuisance. The Council has provided an online method to contact its environmental health team.
- I have not investigated the Council’s responses to Mr and Mrs C’s reports during the period 2010 to 2016 for the reason set out at paragraph 5 above. Mr and Mrs C did not complain to the Ombudsman until July 2020. However, as the matter was ongoing I exercised the discretion available to me to investigate the period from June 2019 onwards.
- Mr and Mrs C did not contact the Council again about the matter during this period until May 2020. The Council then visited the site and agreed to complete some works to reduce the amount of dust being created by vehicle movements. The Council completed this work in a timely manner and Mr and Mrs C have not continued to report issues of dust.
- However, I do consider that the Council should have referred the matter to its environmental health team for an assessment of whether the dust being reported was causing a statutory nuisance or likely to do so. This is particularly the case given the previous history of reports during the summer months. I consider this constitutes fault. However, in the absence of further reports from Mr and Mrs C I consider any injustice is limited.
- The Council suggests it may have a best practicable means defence to any nuisance identified by such an assessment. This would be a matter to consider if a statutory nuisance was identified after the Council considered any recommendations from its environmental health team.
- It is clear from speaking to Mr and Mrs C that they continue to experience problems of dust from the land next to them particularly during dry conditions. It is important that Mr and Mrs C continue to report any issues from dust to the Council as they occur. I appreciate this may not be an issue at the moment due to the wet weather conditions.
- The Council has agreed to:
- write to Mr and Mrs C to apologise for its failure to assess whether the issues of dust they were experiencing constituted a statutory nuisance within one month of my final decision;
- provide Mr and Mrs C with the method of making reports directly to its environmental health team which should include a telephone number rather than just online reporting within one month of my final decision;
- ensure that it responds to any such reports in a timely way and provides its reasons for any decision about whether the nuisance constitutes a statutory nuisance and view of whether best practicable means have been used; and
- provide information to Mr and Mrs C about their private right of action within one month of my final decision.
- I have completed my investigation as I have found fault by the Council but consider the agreed actions above provide a suitable remedy.
Investigator's decision on behalf of the Ombudsman