Summary: Mr X complains the Council failed to properly investigate his complaints of noise, dust and light nuisance from industrial premises. There is no evidence of fault in how the Council investigated some of Mr X’s complaints of noise, dust and light nuisance.

The complaint

1. Mr X complains that the Council has failed to properly investigate his complaints of noise, dust and light nuisance from industrial premises since 2016. He also complains the Council has not dealt with his complaints about light and noise nuisance from a trading estate. Mr X says that as a result he and his wife have been disturbed by noise, dust and light nuisance for longer than necessary, caused significant distress and lost the enjoyment of their home.

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What I have investigated

2. I have investigated events from January 2019. I explain at the end of this statement why I have not investigated events from 2016 to 2018.

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The Ombudsman’s role and powers

3. 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)
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 have:

• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr and Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

7. Councils have a duty to investigate complaints about matters which could be a nuisance covered by the Environmental Protection Act 1990. This includes complaints about noise, dust and artificial light pollution. The presence of noise, dust and artificial light does not mean it is a statutory nuisance. The Council must decide if the noise, dust and light substantially interferes with the complainant’s use of their property or if it is likely to injure their health. If the Council considers the nuisance amounts to a statutory nuisance it must serve an abatement notice.
8. An environmental health officer will generally need to witness the nuisance. He or she will come to an independent judgement on whether the nuisance complained of amounts to a statutory nuisance. In deciding whether noise, dust or light amounts to a statutory nuisance, the Council should take account of a number of factors including frequency, duration, time of day or night and impact.
9. Those served with an abatement notice can appeal to a magistrates court within 21 days of getting the notice.
10. The Environmental Protection Act 1990 also provides local authorities have a duty to inspect their area from time to time to detect any statutory nuisance.
11. The Environmental Permitting Regulations 2016 provide local authorities or Environment Agency can issue permits for industrial activities which can cause pollution. The permits impose condition to be met in order to protect the environment.

What happened

12. Mr and Mrs X live in a property which is located close to industrial sites. Site A is a site which imports materials by rail and is licensed by the Environment Agency for the storage of waste. Site B is an industrial works which operates under an environmental permit issued by the Council. Site C, a trading estate, is also close to Mr and Mrs X’s property. Mr and Mrs X have made complaints about noise, dust and light pollution from the sites. Other residents have also made similar complaints about site A.

Noise

13. The Council carried out a noise investigation in 2017. In 2018 it wrote to residents advising that despite multiple attempts to gather evidence, it had not been possible to demonstrate a statutory nuisance existed. I refer to this by way of background as the Council’s investigation of Mr X’s complaints before 2019 does not form part of this investigation.
14. Between January 2019 and April 2019 Mr X sent video recordings of noise to a number of organisations and a local councillor. Mr X was also complaining of vibration from site A. In May 2019, Mr X sent an email to the Mayor of London complaining that the Council had failed to take action to prevent noise and dust from site A. Mr X copied the Council into this email. Mr X The Council has said Mr X did not contact the Council’s out of hours team to report the noise and allow them to witness it. Mr X made further complaints to the operator in September and to the Council in October 2019.
15. In early 2020, Mr X had a meeting with a senior councillor about the noise from site A. Mr X’s notes of the meeting record the councillor stating that planning permission should not have been given for Mr X’s building due to the proximity to industry. A later email from the senior councillor to Mr X stated the original planning for housing residential and industrial uses so closely did not take sufficient account of the impact.
16. In April 2020 Mr X sent a video recording of noise from site A which he said had been going on since late evening. The Council reviewed the video and asked Mr X some questions about it. The Council has said it also sent diary sheets to Mr X to record details of the noise events. Mr X sent a further video recording of noise in June 2020. The Council advised it could not attend Mr X’s property due to the COVID 19 pandemic. In a later email the Council advised explained it had to witness the noise from a habitable room in Mr X’s property to determine if it was a statutory nuisance and it would attend once restrictions were lifted.
17. Mr X sent a further video recording of noise from site A at night in July 2020 and complained the Council had not taken sufficient action to stop the noise. Mr X also sent further videos in October 2020 recording noise in the early hours of the morning from site A. The Council advised Mr X to make a report of specific events on a given day, including the effect of the noise on him. The Council said it would forward Mr X’s email to the site operator. Mr X requested the Council not to do so or contact him again.
18. In early 2021, the operators of site A commissioned a noise assessment report in response to the complaints about noise. The report concluded that some activities at the site could cause an adverse impact on the building where Mr X lived. In response to my enquiries the Council has said it did not take further action as the report’s conclusions did not show a statutory nuisance. The noise must be assessed in the context of the affect on Mr X’s property and monitored within his property.
19. Mr X reported further noise from site A in April 2021. The Council asked Mr X to complete diary sheets to enable it to establish the degree of disturbance to him. The Council raised Mr X’s complaint with the site operator who agreed to take action to reduce the noise in the early morning. The Council advised Mr X it would close the case as it had not heard anymore from him and the site operator would take action. Mr X replied and advised the noise was continuing but he had not reported it because the Council was not taking action on his other complaints about the site
20. The Council has said it has not taken further action to investigate Mr X’s complaints as he has not contacted the out of hours service to enable officers to witness the noise. The service is available between Thursday and Sunday evenings and some of the noise reported by Mr X has occurred during these times. The Council has said Mr X has previously been advised to contact the out of hours team when making his complaints between 2016 and 2018.

Site C

21. In May 2020 Mr X reported noise nuisance from site C which is close to his property. The Council’s records indicate it contacted the management company for site C and asked Mr X to compete diary sheets to record incidences of the noise. In October 2020 the Council held a site meeting with Mr X and the management company about noise at the site. The Council’s records note Mr X agreed to provide footage of late night deliveries to the site but there was no restriction on the operating hours.
22. In early 2021 Mr X made complaints about noise to the management company. He also sent a video recording noise to the Council. The Council advised Mr X to report the noise to the Environmental Health noise team. In response to further questions from Mr X the Council said he had undertaken to provide footage of late night deliveries and said it would pass his email to the environmental protection team. In a later email the Council advised Mr X to contact the out of hours noise team. Mr X stated he had provided several videos recording noise at the site. The Council advised Mr X that late night working at site C could be a matter for planning enforcement. It subsequently referred him to the local planning authority. Mr X has said he has not had any response regarding his noise complaint.

Dust – site A

23. Mr X complained about dust from site A and also raised that other residents had similar concerns. Officer 2, environmental health officer, advised he would make site visits to the area to check if there was excessive dust. The Council’s records show officer 2 visited the site A on five occasions in July 2019 but did not witness any dust leaving the site.
24. Emails between the local planning authority, the Council and the Environment Agency note site A was complying with the Environment Agency licence. However, there were piles of materials which were not covered by the licence which could be emitting dust.
25. Officer 3 visited site A on six occasions between April and May 2020. On two occasions officer 3 saw dust disturbed by vehicles but the dust did not leave the site. The officer considered the dust witnessed did not amount to a statutory nuisance.
26. Officer 3 wrote to the operator of site A to notify them of the complaints and to forward a video of dust from Mr X. He asked the operator to explain what dust control measures were in place. Officer 3 also said he would contact the other tenant on the site and Environment Agency. The site operator notified the Council of the dust control measures it would put in place. The Environment Agency confirmed the piles of dust on the site were not covered by the waste licence.
27. Mr X continues to complain of dust from site A and considers the piles of materials on site are harmful to residents’ health. The Council has said it did not conclude the dust was sufficient to amount to a statutory nuisance and it did not leave the site boundary. The Council considered the dust was unlikely to cause a significant impact on Mr X’s property due to the distance. The Council has said it did not carry out further visits following its proactive visits in 2019 and 2020 as there was no evidence of a statutory nuisance.

Dust – site B

28. Mr X complained about dust from site B. The Council’s records show it carried out 20 visits to the site between March and June 2020 but it did not witness any dust.
29. In July 2020 Mr X sent a video to another organisation showing dust emitting from site B. The organisation forwarded the video to the Council. Officers visited the site with its inspection agency to see if it was complying with its permit. The Council’s records show the operator explained the incident. Officers issued a warning letter to the operator as there was no previous history of such an event. Mr X disputes this.
30. Mr X provided further videos of dust from site B. The Council asked Mr X to provide a witness statement as his videos were not admissible evidence. The Council then served an enforcement notice as it considered site B was not complying with the terms of the permit. The site operator complied with the enforcement notice.
31. In December 2020 Mr X sent a further video to the Council showing a dust emission from site B. The operator contacted the Council’s inspectors to acknowledge the incident and advised of the action to be taken. The Council caried out a site visit but did not witness any dust. The Council issued a formal caution as the operator had breached the permit. It did not consider a further enforcement notice should be served as the operator had taken remedial action to ensure the problem did not recur.

Light

32. In December 2020 Mr X complained of light pollution from site A and a crane. The Council advised it would need to visit Mr X’s home to see the affect on his property and whether it amounted to a statutory nuisance. However, due to COVID 19 restrictions it was not possible to visit. Officer 4 contacted the site A operator who eventually advised the light would be repositioned. He also asked Mr X to keep diary sheets to record the impact of the light.
33. In February 2021 the Council sent an email to Mr X asking if the light was still causing a nuisance and offered dates he could visit. Officers contacted Mr X to arrange the visit but he declined due to work commitments. The Council’s records note Mr X said the light was coming from site C and a crane. Mr X says he was complaining about a light at site A, which caused him nuisance during the day.
34. Mr X sent his completed diary sheets to the Council which outlined his concerns about lights at site A. In his covering email Mr X said there was an additional light installed at site A which was causing nuisance to him.
35. The Council has said it could not make an assessment of whether the light amounted to a statutory nuisance without visiting Mr X’s property and he had declined a visit. This is because an assessment needs to take account of whether the light is shining through curtains and blinds. The Council has also said its review of Mr X’s diary sheets showed most entries were made between 06:30 to 08:00 so the light was unlikely to amount to a statutory nuisance as most people would not be expected to be sleeping.
36. The Council’s position is that it has investigated Mr X’s complaints of noise and dust at sites A, B and C. But it has not found evidence to show the noise and dust amounts to a statutory nuisance so it is unable to take action.
37. Mr X considers the Council has failed to take sufficient action to deal with the noise, dust and light nuisance. He says this has caused significant distress and is having a significant impact on his and his wife’s mental health. They have had to move out of their home which has had financial implications for them.

Analysis

38. When considering complaints about how a council has dealt with nuisance our role is examine how the Council has investigated the complaints. We do not come to our own view on whether the nuisance complained of amounts to a statutory nuisance.

Noise at site A

39. Mr X made complaints about noise nuisance from site A between 2019 and 2021 to other organisations and the Council. He also sent videos of the noise. However, councils generally have to witness the noise as well as taking into account evidence such as video recordings in order to determine if the noise amounts to a statutory nuisance. In order to serve an abatement notice, and defend any appeal, a council must have robust evidence to show a statutory nuisance exists.
40. On balance, there is no evidence of fault in how the Council dealt with Mr X’ s complaints of noise between 2019 and 2021. The Council could not rely on Mr X’s videos alone so it was appropriate to ask him specific questions about the noise and ask him to keep diary sheets to provide more information about the noise events. It was also appropriate to ask Mr X to contact the out of hours noise team even though its hours are limited. The Council also followed up some of Mr X’s noise complaints with the operator. So, I am satisfied there is no evidence of fault.
41. I note Mr X did not contact the out of hours noise team to witness the noise. In any event, the COVID 19 pandemic would have prevented the Council from visiting Mr X’s property to witness the noise for periods of 2020 and 2021.
42. Mr X had provided an email from another organisation from 2019 which suggests the Council will not investigate Mr X’s complaints of noise. The evidence shows the Council has considered Mr X’s complaints of noise since 2019 so there is no evidence of fault.

Noise at site C

43. There is no evidence of fault in how the Council investigated Mr X’s complaint of noise from site C. The Council held a meeting with Mr X and the management company to address the issues of anti social behaviour and forwarded Mr X’s emails about noise to the environmental protection team. There is no evidence to show the environmental protection team contacted Mr X about his noise complaint. But, I do not consider this caused significant injustice to Mr X. I say this because the Council would have asked Mr X to report the noise to the out of hours team to allow officers to witness the noise. The Council advised Mr X to contact the out of hours team in April 2021.

Dust at sites A and B

44. There is no evidence of fault in how the Council investigated Mr X’s complaints of dust. The Council carried out a number of site visits to the area to witness the dust in 2019 and 2020. I acknowledge Mr X’s videos showed dust leaving the site on some occasions but the Council has to be able to witness this occurring and assess the impact on Mr X’s property. As the Council carried out a number of visits to the site, it was in a position to determine if the dust amounted to a statutory nuisance. However, the Council should keep an open mind and investigate further if Mr X or other residents provide evidence to show the dust could be affecting their properties.
45. There is also no evidence of fault in how the Council investigated Mr X’s complaints of dust from site B and whether it had breached its environmental permit. The Council visited the site on a number of occasions and took enforcement action when Mr X’s videos showed the site had breached its permit.
46. I am mindful Mr X has significant concerns about whether the dust contains materials which are harmful to health. However, the focus for the Council’s investigation has to be whether the dust is a statutory nuisance and I am satisfied the Council has properly investigated this matter.

Light

47. On balance, there is no evidence of fault in how the Council investigated Mr X’s complaints of light nuisance. The evidence shows the Council contacted the operator of site A when it could not visit Mr X’s property due to COVID 19 pandemic. The Council also tried to arrange to visit Mr X to witness the nuisance from the light. I acknowledge Mr X’s concerns were about the light from site A which was shining into his property during the day. I have considered if the Council should have offered a further site visit. However, the Council has considered Mr X’s diary sheets and took the view it should not investigate further as the light was unlikely to amount to a statutory nuisance. So, on balance, I do not consider there is evidence of fault and I do not have grounds to question its decision.

Planning permission for Mr X’s building

48. I am mindful that a senior councillor told Mr X that planning permission for his building should not have been granted. However, in order to determine if there was fault I would have to investigate how the Council considered the planning application, including the consideration of the planning policies applicable at the time. The outline planning permission was granted some 17 years ago so I cannot reliably investigate how the Council considered the planning application due to the passage of time. I also have to take account of the fact Mr X bought his property and it was for him to satisfy himself about the character of the area when purchasing the property.

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Final decision

49. There is no evidence of fault in how the Council investigated Mr X’s complaints of noise, dust and light nuisance. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

50. I have not investigated Mr X’s complaints about how the Council investigated his complaints of noise and dust nuisance prior to 2019. The complaints are late and it was open to Mr X to make a complaint to the Ombudsman before now. I also do not consider I could carry out a reliable and effective investigation into the events before 2019 due to the passage of time or achieve anything for Mr X.

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Investigator's decision on behalf of the Ombudsman