Summary: There was no fault in how the Council investigated a potential odour and noise nuisance. For this reason, we completed our investigation.

The complaint

1. I will refer to the complainant as Mr P.
2. Mr P says an industrial unit near his home causes an odour and noise nuisance, but complains that, despite a lengthy investigation, the Council has not issued an abatement notice to the unit operator.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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)
5. 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)

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How I considered this complaint

6. I reviewed Mr P’s correspondence with the Council, along with the Council’s notes and comments about its investigation.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. I will first explain here that the law says a person should approach the Ombudsman within 12 months of becoming aware of the issue they wish to complain about. Mr P began contacting the Council to report nuisance from the industrial unit in June 2020, but did not complain to the Ombudsman until March 2022. Anything which happened before March 2021 is therefore late, by this rule.
9. The law does allow us some flexibility around this rule, where we consider there is a good reason for a person’s delay in approaching us. However, I cannot see any evidence of such a reason here. I note, in particular, Mr P’s first formal complaint to the Council was in September 2020, and so I consider it would have been reasonable to expect to him to have approached the Ombudsman sooner than March 2022.
10. I will therefore not make a formal finding on any discrete issue which occurred before March 2021, although I will refer to earlier issues where necessary for context.
11. Mr P lives near a small industrial unit. In June 2020, he contacted the Council to say the unit was producing odours and noise which were causing nuisance to his and other neighbouring properties. Mr P asked the Council to investigate the matter.
12. In September, Mr P complained to the Council that no progress had been made on his request. The Council responded later in September, to explain it had allocated the case to a specialist officer, but due to a backlog of work they had been unable to progress it yet. It said it had now asked the officer to prioritise the case and visit Mr P by the end of the week.
13. The case officer contacted Mr P in October. She asked him to continue to report incidents using the Council’s online system, but explained she could not guarantee she would be able to respond immediately to any reports he made. She also explained she was arranging to visit the industrial unit.
14. The officer visited the unit a few weeks later. The operator showed her around the facility but explained he was rarely there, and expressed surprise complaints had been made.
15. In November, Mr P asked the case officer about the outcome of her visit, and reported further recent instances of odour nuisance arising from the unit. He said the unit was operating throughout the weekend and the odour had been preventing him from using his garden.
16. Through March and April 2021, Mr P made a series of further reports to the Council about the odours. The Council noted each of these reports was made either after the incident in question, or outside of its office hours, and logged them.
17. Mr P wrote direct to the case officer on 19 April, to ask for an update. She responded the following day. The case officer apologised she had not been in touch sooner and said this was due to reduced capacity because of the COVID-19 lockdown.
18. The case officer explained the Council had not been able to establish a nuisance arising from the unit. She said the operator was working lawfully, so the Council had no grounds to take enforcement action in this respect, and that the best option was for the Council to visit during an incident so it could witness the issue first hand. The case officer asked Mr P to contact her either during an incident, or to arrange a visit when the alleged nuisance was most likely to be happening.
19. Mr P responded to the case officer positively, and said he would contact her when the problem was occurring, or when it appeared to be imminent.
20. Mr P logged further incidents in April and May. The case officer visited the industrial unit on 27 April. She recorded that she had observed no odour or noise, that the gates were locked and it appeared the unit was not in operation. The case officer visited again on 13 May, but with the same result.
21. The case officer visited a different complainant on 24 May, when she noted a faint odour. The same complainant contacted the case officer again on the following day to say the odour was present again; but when the officer drove past the site approximately an hour later, she recorded that no odour was present.
22. After further reports from Mr P and other residents, the case officer wrote to Mr P on 10 June and agreed the current approach, of visiting reactively, was not working. She said she would visit again on the upcoming Tuesday, which appeared to be the unit’s busiest day, and in the meantime would serve an abatement notice, which she wrote was “justified in light of the ongoing complaints”. The case officer said she would update Mr P after her visit, and discuss further visits to determine if the operator was breaching the abatement notice.
23. The Council visited the unit on 15 June and gave advice to the operator. It noted the unit’s equipment was well-maintained, and the materials it used should not produce significant odour. It also noted the unit did not operate frequently enough “to confirm scale of operation suggested”. For this reason, the Council decided it was not appropriate to issue an abatement notice.
24. The case officer set aside time on 28 June to visit the unit “on the off chance” it was in operation, but cancelled this when she received confirmation it was not.
25. The Council received further reports in June and September. In October, it visited the unit again and inspected its equipment, but again found it to be well-maintained, and no evidence the operator was not using it as intended. It also noticed there was no evidence of noise or odour.
26. Mr P made further reports through November.
27. In January 2022, the Council sent Mr P a stage 2 complaint response (I have not seen a copy of Mr P’s complaint itself). The Council noted the number of visits the case officer had made to the unit in May 2021, but during the visits the “premises were either closed or operating but no odour witnessed and the spray booth not in use”. During her visits in June, the case officer had spoken to the operator and verified he was using his equipment as intended. The Council explained this was why it had decided it should not serve an abatement notice, despite the case officer’s suggestion.
28. The Council said the short duration and intermittent nature of the odour, as well the fact it sometimes happened outside office hours, made it difficult to investigate. The case officer had set up an informal system for Mr P to report to her via text message, but explained she could not guarantee an immediate response. It noted the officer had visited Mr P’s home twice but had not observed any odour, and had inspected the unit again in October. The Council said the operator would likely win any appeal he made against the service of an abatement notice, on the evidence the Council currently had.
29. On 8 March, Mr P referred his complaint to the Ombudsman.
30. On 22 March, Mr P called the case officer to report a current odour nuisance. The case officer was unable to respond immediately, but wrote back to Mr P to explain her availability in the next few days and to suggest a video conference with him and another complainant.
31. On 23 March, Mr P sent a message to the case officer again reporting a current nuisance. The officer responded just over an hour later to ask if it was ongoing, and said she would visit now. Approximately 45 minutes later the officer noted she had received no response from Mr P, but was on site and could not detect any odour.
32. Mr P made further reports through March and into April. On 4 April, the Council wrote to Mr P to explain it had restructured its team to provide additional resources for issues reporting during the day, and that this case was marked as priority for investigation for the next four weeks.
33. In July, in responding to enquiries I made with the Council, it confirmed this is still a live case and its investigation is ongoing.

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Legislative background

Statutory nuisances

34. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
35. 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

36. 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.

37. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
38. 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.
39. 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.

Abatement notices

40. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
41. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
42. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Section 82 of the Environmental Protection Act 1990

43. 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.

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Analysis

44. The Ombudsman’s role is to review the way councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or failed to explain properly why it has made a decision.
45. However, we do not offer a right of appeal against contested council decisions, and we do not make operational or policy decisions on their behalf. We cannot criticise a council decision if there was no fault in the way it was made, and we cannot uphold a person’s complaint simply because they disagree with a council decision.
46. Determining whether something is a statutory nuisance is a matter of professional judgement for qualified council officers. The simple fact a complainant believes the issue they have reported meets the threshold for a statutory nuisance is not enough; officers must assess the nuisance objectively, while bearing in mind the different relevant factors such as timing and duration. To this end, we would generally expect officers to seek to witness the issue first-hand – either in person, or where practical, by using some form of recording or monitoring equipment – before deciding whether it was a statutory nuisance.
47. In this case, during the period I am investigating, it is clear the case officer has put considerable effort into attempting to visit the site while the nuisance is actually happening, to allow her to make this kind of first-hand assessment. She has made visits both to Mr P, and to the industrial unit itself, and inspected the operator’s equipment more than once.
48. And I note, in particular, the case officer arranged a system whereby she could respond as quickly as possible to reports of nuisance. This allowed her to visit the site within an hour or two of a report on at least two occasions.
49. But, despite all of this, the case officer has been unable to identify any nuisance, at most recording what she described as a faint odour.
50. I understand Mr P wishes the Council to serve an abatement notice on the operator. However, without first identifying a statutory nuisance, the Council has no power to do this; and I cannot direct the Council to find there is a statutory nuisance, against the professional judgement of its own officer, and where it has been unable to gather evidence to support such a decision. As I have explained, these are decisions for the Council to make, and I cannot intervene simply because Mr P disagrees.
51. In his complaint to the Ombudsman, Mr P notes the operator works alone, and must therefore stop working to receive a visitor. He suggests this is the reason the case officer has not been able to detect the odour when she has visited the site.
52. But I am not convinced by this argument. It appears unlikely any odour strong enough to cause the problems Mr P describes would disappear the instant the operator stopped working. And this also does not explain why the case officer has not detected any significant odour when visiting complainants or driving past the site, rather than visiting the industrial unit itself.
53. Taking these points together, I do not consider there is fault by the Council in its investigation. The law says that, when it receives a complaint about a potential statutory nuisance, the Council has a duty to take ‘reasonably practicable steps’ to investigate it. I cannot say the Council has failed to discharge that duty here. The fact that, in doing so, the Council has not identified a statutory nuisance, does not mean it has failed to investigate properly.
54. In my draft decision on this case, I made two observations about the Council’s investigation, although I did not consider they amounted to evidence of fault.
55. First, I noted the case officer did not appear to have sought to arrange a time and date with the operator, for her to visit the area when the unit would be in full operation. It seemed this would overcome the problem she had encountered, of being able to attend when the alleged odour nuisance would be at its most intense.
56. In response to my draft decision, the Council said it had in fact tried to do this twice, with one visit being cancelled because of the COVID-19 pandemic, and on the other occasion the operator’s job was cancelled.
57. I accept this, and I am now satisfied this approach has been attempted by the case officer, although I will comment I did not find this clear from her notes.
58. My second observation was that the Council did not appear to have given any consideration to installing noise monitoring equipment. This is a common tool used by local authorities when investigating potential noise nuisance, and where it is difficult for officers to be on site when the alleged noise is actually happening. I acknowledged the noise was a secondary issue here, but commented this seemed a potential way forward with this aspect at least.
59. The Council replied to explain it does not routinely use noise monitoring equipment, and would generally only do so where noise was the primary issue and “all other avenues have been exhausted”. It also highlighted it had assessed the operator’s equipment on site, and did not consider this could realistically cause a noise nuisance.
60. Again, I am satisfied with the Council’s further explanation here, and I must reiterate this is a decision for the Council to make.
61. However, a third observation I made, and one I will maintain here, is about the case officer’s proposal, in June 2021, to serve an abatement notice on the operator on the basis of the ongoing complaints.
62. The Council has the power to serve an abatement notice only once it has identified a statutory nuisance. Although it is for Council officers to decide whether this test is met, there is nothing in the case officer’s notes to suggest she had made such a decision. The simple fact a council was receiving complaints about nuisance would not generally be considered, alone, to justify the service of an abatement notice, because complaints are by nature subjective. Instead, it is normal for councils to seek to obtain objective evidence, before making a decision to serve an abatement notice, because the recipient has the right of appeal.
63. It is again, therefore, surprising that the case officer proposed this course of action; a view which is reinforced by the fact she quickly withdrew it, after a visit to the unit a few days later.
64. Again, I do not consider this amounts to fault by the Council – it was, in the end, a minor issue with no wider consequences I can discern. But I am left questioning the advisability of the officer’s proposal, given the necessity to manage a complainant’s expectations in a case such as this.

Conclusions

65. When it receives a report of a potential statutory nuisance, the Council’s duty is to take reasonably practicable steps to investigate, gather objective evidence, and make a professional assessment of the nuisance. I am satisfied the Council has done so in this case. Although it has not identified a statutory nuisance, this does not mean there is any fault by the Council here.
66. Mr P should also note he has the right to apply direct to the magistrates’ court under s82 of the Environmental Protection Act, for it to decide whether the industrial unit is causing a statutory nuisance, and if so, serve an abatement order on the operator. This process does not involve the Council and does not require it first to identify a statutory nuisance. I note there is some useful information about this on the Council’s website.

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Final decision

67. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman