Summary: Mr X complained about paint flakes containing lead particles falling on to his property from a nearby telecommunications mast. There was no fault by the Council.

The complaint

1. Mr X complained about paint flakes containing lead particles falling on to his property from a nearby telecommunications mast. He said this is causing a health risk.
2. Mr X said the Council is responsible as it leases the site to a telecommunications provider. Mr X does not consider the Council is doing enough to resolve the issue.
3. Mr X has also raised issues about noise nuisance, planning breaches, and unsafe work practices by the telecommunications provider.

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What I have and have not investigated

4. The Ombudsman has previously investigated Mr X’s complaints about noise nuisance and planning breaches. We will not investigate these issues again.
5. The Ombudsman does not have jurisdiction to investigate the working practices of private companies. I understand Mr X is pursuing this complaint with the Health and Safety Executive.
6. I have investigated the Council’s consideration of the lead paint flakes falling onto Mr X’s property.

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The Ombudsman’s role and powers

7. 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)
8. 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)

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How I considered this complaint

9. As part of the investigation, I considered the complaint and the information Mr X provided.
10. I made written enquiries of the Council and considered its response along with relevant law and guidance.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory nuisance

12. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
13. 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.
14. 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.
15. 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.
16. 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.

Contaminated land

17. Contaminated land describes land polluted by:
• Heavy metals, eg arsenic, cadmium and lead.
• Oils and tars.
• Chemical substances and preparations, eg solvents.
• Gases.
• Asbestos.
• Radioactive substances.
18. Contaminated land is defined legally as land where substances could cause:
• Significant harm to people or protected species.
• Significant pollution of surface waters or groundwater, or
• Harm to people as a result of radioactivity.

Contaminated Land Statutory Guidance (April 2012)

19. The local authority has the sole responsibility for determining whether any land appears to be contaminated land. However, in making such decisions the authority may rely on information or advice provided by another body such as the Environment Agency, or a suitably qualified experienced practitioner appointed for that purpose.

What happened

20. I have detailed below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
21. Mr X lives near a telecommunications mast (the mast). The land on which the mast sits is owned by the Council. The Council leases the land to a telecommunications provider (the provider).
22. Mr X has experienced longstanding issues with paint flakes falling from the mast and into his garden.
23. He also raised issues about noise, breaches of planning control, and unsafe working practices at the site. The issues have not been included in my investigation.
24. Mr X emailed the Council on 14 July 2022. He said he contacted the provider about lead paint flakes and dust being dislodged. He said the paint is toxic and the Council was not addressing the issue.
25. Mr X said workers were not the only people at risk. He said the Council had a duty to protect the public and its environmental health service had a duty to look into it.
26. The Council emailed the telecommunications provider (the provider) on 29 July 2022 asking if it could tell Mr X the provider was looking into sampling and testing.
27. The provider agreed the Council could say it was looking into this, but stressed it had not appointed anyone and testing was not imminent.
28. The provider told the Council on 22 August 2022 it was waiting to hear from a consultancy company about costs for testing.
29. Mr X emailed the Council 26 August 2022. He said it misled him by telling him to complain to the Ombudsman when he had not completed the Council’s complaint procedure. He said this was a delaying tactic. He said more paint flakes were dislodged after recent rain and the Council was doing nothing to stop the spread of contamination.
30. The provider emailed Mr X on 5 September 2022. It said it was looking into his concerns and asked him to meet on site to discuss matters. Mr X agreed to meet on 7 October.
31. On 9 September 2022, the Council told us its response to Mr X was about wider complaints and the longstanding history relating to planning matters. The Council confirmed Mr complained about noise in 2021 and about planning in 2022, both investigated by the Ombudsman. The Council confirmed Mr X’s complaint about paint flakes was with its relevant service and had not yet gone through the complaint process. The Council confirmed it arranged a site visit and the provider was commissioning an independent survey.
32. Mr X emailed the Council on 22 September 2022. He agreed his claims about contamination had not yet been proven, but lead paint flakes and dust collected on his property is proven. He said it is hazardous, makes his garden unusable, and spoils the enjoyment of his property. He asked why the Council was not doing the testing itself.
33. On 26 September 2022, the provider told Mr X it had commissioned an air and ground quality report from an independent consultancy. It said it would organise a climb of the mast during the testing to release any loose paint flakes to make sure the testing is real world. It also planned to take soil samples from his garden.
34. Mr X agreed soil sampling but not to climbing the mast. He said this would release paint flakes and dust and was irresponsible. He said a climb was not needed, as wind and rain already dislodged particles.
35. The Council said it saw paint flakes Mr X had collected when it visited, but there were no paint flakes in his garden. Mr X said this was because he picked them up. The Council said it also found no paint flakes on the adjacent street or anywhere in the vicinity. It said the relevant statutory nuisance would be ‘dust arising from industrial, trade or business premises’. It said there was no evidence of this. Given there was no evidence of dust, or particles, there is little to cause the Council to believe there is a problem with contamination or a public health risk. The Council said it was reasonable for the provider to engage an independent consultant, and the Council cannot do the work itself so would only employ a similar consultant, so the result would be the same.
36. Mr X emailed the Council following the site meeting on 7 October with his version of events. He said he asked the provider how it was going to stop paint flakes falling from the mast. They planned to put another coat of paint over it. Mr X said he disagreed with this. This was the action taken last time. It was a quick fix which would fail. Mr X said the provider should remove all hazardous material under controlled conditions. He said the consultant took soil samples in his garden, and he showed the consultant the debris collected (paint flakes, bolts, washers, cable ties). Mr X said the Council has been aware of lead paint flakes falling since 2002 and failed to address the issue.
37. Mr X asked the Council for an update on his complaint on 21 October 2022. He said the Council had not stopped the provider spoiling the enjoyment of his property. He said Council officers witnessed the lead paint flakes and parts of telecommunications equipment falling from the mast.
38. The Council said it was waiting for the results of the recent testing to determine whether the land is contaminated. If it is, the provider will need to remedy it. On spoiling the enjoyment of his property, the Council referred to the test applied in statutory nuisance cases. It said dust falling from the mast must unreasonably and significantly impact the enjoyment of his property. The Council was not satisfied a statutory nuisance exists.
39. The consultant’s report into possible contamination of the land was completed on 21 December 2022. As part of the testing for the report, soil samples were taken at the site. Samples were taken of airborne dust deposits near the mast and of airborne particles. There was then chemical analysis of the deposited dust. A sample of paint from the mast was also taken and analysed.
40. The overall average concentration of airborne particles was found to be well within air quality tolerances. In addition, the amount of lead found in the airborne particles was well below the UK air quality objective.
41. Dust deposition was found to be at a level where complaints were not considered to be likely. The quantity of lead within the deposits was below the laboratory’s lower limit of detection, and was therefore considered likely to be not significant.
42. The paint on the mast was found to contain at least eight layers. Six of those layers contained lead. However, no concentrations of lead above the assessment criteria were found in the soil.
43. The Council contacted Mr X on 5 January 2023. It said it intended to hold an online meeting to discuss the results and answer further questions.
44. Mr X said he found the report deliberately misleading. He said it gives the impression his only concern is historical paint droplets may be contaminating the environment. He said the paint flakes have been falling since 2002 and the Council allowed poisonous lead to fall into his garden, as well as metal objects, ignoring public safety.
45. The Council wrote to Mr X following the meeting on 16 February 2023 to summarise the outcome. It agreed the paint from the mast contains lead, but a relatively low level. It said there was no evidence the land was contaminated. On the risk of paint flakes being ingested, the Council said the relevant environmental standards are based on the highest risk scenario, being chronic exposure, or where produce from the garden was regularly eaten. It said test results fell below the risk levels applied. It said there was no further action the Council could take, and the land is not deemed to be contaminated.
46. The Council recognised Mr X’s concerns about future risk from paint flakes and that he wanted the old paint removing before a new layer is applied. The Council said the provider was looking to carry out maintenance of the mast in the next 12 to 24 months. This will include cleaning the mast and coating it with a two-part paint to encapsulate the old paint. The provider said paint technology had moved on significantly since the mast was last repainted. The provider had concerns removing the old paint would create a large amount of fine lead particles and may damage the corrosion protection.
47. In summary, the Council said there is no evidence of imminent risk the mast will cause contamination and its investigation was closed.
48. Mr X said the meeting raised more questions than answers and the report is full of disclaimers. He said the consultant acknowledged testing over 12 months would give a better indication of contamination. He said even though lead levels are low, there is still a risk, and the Council has a duty to eliminate it. He said a new layer of paint was not a permanent solution.
49. Mr X emailed the Council on 22 February 2023. He said, during testing, the air monitoring device was placed beneath the mast, and the mast was not climbed. He questioned how this was a true picture of conditions. He also said no consideration was given for wind movement of flakes and dust. He could not understand how professionals thought the testing was carried out under correct circumstances.
50. On 2 March 2023, the Council wrote to Mr X about his complaint dated 21 July 2022. It said it had been corresponding with him about the mast since 2019 and he made three complaints to the Ombudsman. One about a planning application, one about noise, and the third about planning enforcement.
51. The Council said, following his complaint in July 2022, it undertook extensive investigations which were explained to Mr X in a meeting on 16 February 2023. It also sent a post meeting letter confirming its stance on 17 February.
52. Mr X sent the Council his own testing results on the paint flakes on 10 March 2023. The results confirmed the presence of lead in the paint flakes. He asked whether the Council considered this was an acceptable way for the site to be operated, considering the amount of lead paint detaching from the mast. He said the Council knowingly allowed a company to put the public at risk.
53. The Council said, as per previous emails, it assessed there is no evidence of statutory nuisance. It said Mr X could bring a private case in the Magistrates court if he thought there was. The Council said its investigation remained closed.

My investigation

54. The Council told me Mr X wanted it to investigate his complaint as a statutory nuisance. However, the Council does not consider the quantity of paint flakes is enough to give rise to a statutory nuisance. Instead, the Council investigated the issue as possible contaminated land.
55. Following testing and analysis organised by the telecommunications provider, the Council concluded there was insufficient risk to public health. The Council said it was satisfied testing conditions replicated normal working. It said staff rarely scale the telecommunications mast. They did offer to do so for the testing, but Mr X declined.
56. The Council does not consider Mr X or anyone else is at significant risk. It said it has received no complaints from other residents.
57. The Council said, because there is no significant risk to health, it cannot compel the telecommunications provider to take action. However, the choice of repainting the mast was considered the least likely to pose further risk.

Analysis

58. There is no defined standard or definition of what amounts to a statutory nuisance. I found the Council considered the relevant legislation relating to dust from industrial or business premises, which it confirmed to Mr X. The assessment of a statutory nuisance is down to the interpretation of qualified officers. In this case, officers from the Council’s environmental health service determined a statutory nuisance was not taking place. This determination was made after considering Mr X’s evidence and visiting the site. I found no evidence of fault in the way the decision was reached. I therefore cannot question the merits of the decision.
59. I considered the report into possible contamination of land. I found it clear in explaining its objectives and methods, as well as being clear in explaining its findings. Mr X may disagree, but the Council was entitled to rely on the report.
60. The report was completed by suitable experts in their field. I therefore do not criticise the Council’s refusal to do more testing or pay for its own report because of Mr X’s objections.
61. I have not seen evidence to suggest the consultant’s report was inaccurate or unreliable. I appreciate the data is more a snapshot than a long-term picture, but that does not mean the results are inaccurate or unreliable.
62. The proposed remedial action to stop paint flakes falling is to repaint the mast. I appreciate Mr X is sceptical, as this was attempted before. He wants the old paint removing. The provider considers it would be unsafe to do so. It said paint technology has moved on since the mast was last painted. It considers this is the most suitable course of action and there is no evidence on which I can question that decision. Mr X may disagree, but there is no suitable expert opinion to the contrary.
63. The Council is not under a duty to eliminate all risk. It will look to remove or prevent risks it considers unacceptable. The issue of falling paint flakes is a long-standing one, and I can appreciate Mr X’s concerns. However, the Council is satisfied the risk is low and there is no statutory nuisance. This is likely supported by the fact there have been no reports of lead ingestion or poisoning in all the years the mast has been operating, and no recorded complaints from other residents.

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Final decision

64. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman