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Broadland District Council (20 008 563)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 02 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to properly investigate complaints about statutory noise and pollution nuisance from his neighbour since 2009. Mr X says this caused he and his family physical and mental stress due to noise from machinery and inhalation of smoke from large fires. The Ombudsman does not find fault with the Councils actions.

The complaint

  1. Mr X complained the Council failed to properly investigate complaints about statutory noise and pollution nuisance from his neighbour since 2009. Mr X says he raised many complaints with the Council, but the Council did not act.
  2. Mr X says this has caused he and his family physical and mental stress due to noise from machinery and inhalation of smoke from large fires. Mr X says the neighbouring forestry business also caused damage to his property.

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What I have investigated

  1. I have investigated Mr X’s complaints about the Council failing to investigate statutory noise and pollution nuisance since 2019.
  2. I have not investigated Mr X’s complaint about the Council failing to act before 2019. I have also not investigated delays by the Council in responding to Mr X’s complaint. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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. 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 all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
  2. The Council did not provide comment on my draft decision. I considered Mr X’s comments before making my final decision.

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What I found

Statutory Nuisance

  1. The Environmental Protection Act 1990 (EPA) places a duty on councils to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. Statutory nuisance can also be pollution which includes accumulations, odours, fumes and dust from premises.
  2. The Council is required to investigate complaints of statutory nuisance. It will gather evidence to find out whether the nuisance complained of is causing a statutory nuisance. If it finds the nuisance is a statutory nuisance it must act stop it. If a Council decides a statutory nuisance exists it must issue an abatement notice.
  3. If a person goes against an abatement notice they will be guilty of an offence. A person committing an offence is liable to a fine on conviction by a Court.
  4. For a nuisance to amount to a statutory nuisance it must either:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other property
    • Injure health or be likely to injure health
  5. There is no set level at which nuisance becomes a statutory nuisance. The Council’s role is to consider several factors such as the activity, locality, time of day, frequency and duration of the nuisance.

Council Policy

  1. When Mr X complained to the Council about noise and pollution nuisance, the Council did not have a policy for handling statutory nuisance complaints. The Council said it followed a similar, but informal, route to handling complaints.

Council Pollution Nuisance Policy

  1. When the Council receives a complaint about smoke nuisance it should log the complaint and attend the site of the complaint.
  2. During the visit, the Council officer should check if the smoke is permittable at the site. If the smoke is not permittable, the Council should act to enforce compliance with any permits that exist.
  3. If the smoke is not occurring during the visit, the Council should contact or visit both the complainant and the perpetrator. The Council should tell the perpetrator there has been an allegation of smoke and request details of what may have caused the smoke. The Council should advise the perpetrator of what enforcement action it could take if it receives further justified complaints about smoke.
  4. If the Council decides it should not take enforcement action it should tell the complainant.
  5. If the Council Officer witnesses smoke on-site which they consider is an offence under the relevant legislation the Council should caution the perpetrator and complete an interview. The Council should note down the colour, odour, duration and nature of the smoke. The Council Officer should ensure the fire is extinguished if the smoke is dark, black, potentially toxic or a nuisance.
  6. If there has been no previous complaints and the Council officer considers it likely this is a one off event, the Council officer should issue a warning to the perpetrator. If the Council received previous complaints the Council should consider further enforcement action, namely issuing an abatement notice.

Council Noise Nuisance Policy

  1. The Council should log a complaint about noise from any resident. The Council should refer the complaint to the relevant investigating team and complete a history check of the property for any notes of repeated complaints.
  2. The Council classifies complaints as High, Medium and Low priority depending on the severity and recurrence of the complaint. For high priority complaints, the Council should arrange a visit to the site within 1 day of receiving the complaint. For medium and low priority complaints, the Council should try to visit the site to witness the noise but where this is not practicable, the Council should issue noise nuisance diary sheets. If the diary sheets show a noise nuisance, the Council should visit the site or offer noise nuisance monitoring equipment.
  3. The Council will close a complaint when it has completed an investigation and the outcome is one of the following:
    • The Council identifies no statutory nuisance.
    • The Council took informal action such as warning letters or meditation, causing the nuisance to stop.
    • The Council took formal action, such as an abatement notice, causing the nuisance to stop.
    • The Council refers the matter to an external agency or other department to investigate.

Background

  1. Mr X’s neighbour, Mr Y, ran a forestry business from a piece of land next to Mr X’s since at least November 2006.
  2. Mr X complained to the Council about Mr Y making noise for the past week by using log splitters and chainsaws in September 2014. The Council sent a warning letter to Mr Y and diary sheets to Mr X to complete. Mr X returned the diary sheets in October 2014. The Council tried to contact Mr X in November 2014 and twice in January 2015. Mr X told the Council in February 2015 that Mr Y had moved his work to the opposite end of the site, so the noise had reduced. The Council closed the complaint.
  3. Mr X complained to the Council about smoke caused by Mr Y burning material on his land on 5 November 2015. A Council officer attended the site on the same day. The Council officer noted no smoke inside Mr X’s property but noted “thick and swirling” smoke outside coming from Mr Y’s property. The Council reported the matter to the Environment Agency and told Mr X. Mr X did not complain again so the Council closed the complaint.

What Happened

  1. Mr X complained to the Council about smoke caused by Mr Y burning material on his land on 8 March 2019. A Council officer attended the site on the same date.
  2. The Council officer noted no fire at the time of the visit. He spoke to both Mr X and Mr Y. Mr Y confirmed he had been burning material and agreed to not have further fires at the site following an informal warning from the Council officer. The Council officer told Mr X of the discussion with Mr Y and asked Mr X to complete diary sheets.
  3. Mr X did not send back diary sheets, so the Council closed the complaint in May 2019.
  4. Mr X complained to the Council on 23 October 2019 about smoke and noise nuisance from Mr Y’s property. Mr X said Mr Y was stockpiling material to burn.
  5. A Council officer attended the property on 24 October 2019 and found over ten tonnes of waste material ready to be burned. Mr Y confirmed he was going to have a bonfire and confirmed he had been cutting logs using machinery but could not confirm the frequency. The Council officer said he would write to Mr Y formally about the nuisance from the fire, following the informal warning in March 2019.
  6. The Council reported Mr Y to the Environment Agency for burning waste unrelated to a tree surgery. The Council also liaised with its planning enforcement team. The Council asked Mr X to complete diary sheets for the nuisance, but Mr X declined. The Council sent a warning letter to Mr X about the noise nuisance.
  7. The Council decided Mr Y was likely to have further fires at his property over the coming days and served an abatement notice on Mr Y requiring the stop to further fires. The Council told Mr X it had served an abatement notice and asked him to report any further fires.
  8. Mr X did not report any further fires.
  9. Mr X made a formal complaint to the Council on 30 October 2019. Mr X said the Council ignored his complaints about smoke pollution, noise nuisance and a breach of planning permissions over the past ten years.
  10. The Council accepted Mr X’s complaint on 11 November 2019.
  11. Mr X complained to the Council on 4 December 2019 about chainsaw noise from Mr Y’s property. The Council said it had previously warned Mr X about noise nuisance and could offer Mr X noise monitoring equipment and that Mr X did not agree to noise monitoring equipment. Mr X says the Council did not offer him noise monitoring equipment but said he could record the noise nuisance. Mr X says he declined because of potential retaliation from his neighbours.
  12. Mr X chased the Council for a response on 9 January 2020. The Council promised it would provide a response in the week beginning 13 January 2020. The Council did not provide the promised response.
  13. Mr X chased a response to his complaint again on 18 February 2020. The Council told Mr X it was investigating his complaint. Mr X sold his property in March 2020.
  14. The Council responded to Mr X’s complaint on 2 April 2020. The Council said:
    • It had investigated each complaint made and achieved satisfactory compliance through either direct negotiation with Mr Y or determined there was no statutory nuisance.
    • The only formal action it took was in October 2019 when the Council served an abatement notice on Mr Y to prevent burning of materials on-site.
  15. Mr X disputed the Council’s response on 23 June 2020. Mr X said that Mr Y’s recent planning application confirmed he had acted in breach of the previous planning conditions attached to the 2009 planning application. Mr X brought his complaint to the Ombudsman.

Analysis

  1. Mr X complained the Council has failed to investigate his complaints about noise and pollution nuisance from Mr Y’s property.
  2. The Council should acknowledge and investigate all complaints about statutory nuisance.

Pollution Nuisance

  1. For pollution nuisance the Council should attend the site and decide if any pollution is causing a statutory nuisance. The Council officer should issue a warning on a first nuisance and must consider issuing an abatement notice on a second nuisance.
  2. The Council responded to Mr X’s complaint in March 2019 and witnessed a statutory pollution nuisance. The Council acted in line with its policy and issued Mr Y with an informal warning.
  3. The Council closed this complaint because Mr Y promised not to burn further material. The Council resolved the complaint through mediation in line with its policy. I do not find fault.
  4. When Mr X complained again in October 2019 about Mr Y stockpiling material to burn the Council attended the site. The Council decided that Mr Y was likely to burn the material on his land which would cause a statutory nuisance. Since the Council had previously sent Mr Y a warning it served Mr Y an abatement notice against having further fires.
  5. Mr X did not complain about any further fires at Mr Y’s property. The Council closed Mr Y’s complaint on the premise the abatement notice had prevented statutory pollution nuisance. The Council has acted in line with its policy by taking the next step in its policy. This stopped the statutory nuisance. I again do not find fault with the Council.
  6. Neither Mr X, nor any other resident, complained to the Council since October 2019 about statutory pollution nuisance. The Council can only take further action if Mr Y acts in breach of the abatement notice.

Noise Nuisance

  1. For noise nuisance, the Council should attend the site within 1 working day if it considers the complaint is high priority. For medium or low priority complaints, the Council should provide noise nuisance diaries, review these on response and decide if this potential presents a noise nuisance. If the Council decides noise nuisance is likely it should visit the site or offer noise nuisance monitoring equipment.
  2. If the Council discovers a statutory noise nuisance it should issue a warning letter and start mediation with the perpetrator. The Council should consider formal action, such as an abatement notice, if the noise nuisance continues.
  3. The Council attended Mr Y’s property in October 2019. Mr Y confirmed he had been using chainsaws at his property. The Council issued a warning to Mr Y about statutory noise nuisance.
  4. The Council kept Mr X’s complaint open. Mr X complained again in December 2019 about noise nuisance from Mr Y’s property. The Council said Mr X could record the noise; Mr X declined this suggestion and decided to speak to Mr Y. Mr X did not contact the Council again to report noise nuisance, so the Council closed the complaint.
  5. A Council’s investigation of statutory nuisance is partially reliant on cooperation of complainants. Diary sheets and noise recording, whether through Council equipment or noise apps, are invaluable tools for a Council to prove statutory noise nuisance. Without evidence of a statutory nuisance, the Council cannot take formal action or issue an abatement notice.
  6. The Council acted in line with its policy by issuing a warning to Mr Y first and then offering noise monitoring equipment on the second instance. As Mr X did not report further noise nuisance the Council closed the complaint on the premise there was no continuing statutory nuisance. I do not find fault with the Council.

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Final decision

  1. I have completed my investigation as there is no evidence of fault by the Council.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr X’s complaint the Council failed to investigate complaints about statutory noise and pollution nuisance before 2019. This is because Mr X did not complain to the Council from 2015 to 2019 about noise or pollution nuisance.
  2. The Local Government Act 1974 says the Local Government Ombudsman cannot investigate late complaints unless there is a good reason to do so. A good reason could be a continuation of an ongoing complaint going back more than 12 months without a material break.
  3. I exercised my discretion to investigate Mr X’s complaints back to March 2019 as these presented as one complaint with no break of over 12 months. The break from 2019 to 2015 is too large to be considered as part of the same complaint.
  4. If Mr X had concerns about the noise and pollution nuisance from the Council prior to 2015 he could have brought it to our attention much sooner.
  5. I have not investigated delays from the Council in responding to Mr X’s complaint. This is because the Council responded to Mr X’s complaint in the same timescales as a linked complaint, reference 20004143. I have addressed the delays in the linked complaint. It is not appropriate to provide a remedy twice for the same fault.

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Investigator's decision on behalf of the Ombudsman

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