Summary: Mr D complained the Council failed to properly investigate and take appropriate action to address his concerns about a noise, dust and smell nuisance from a neighbouring business. As a result, he said he experienced distress and he has been unable to sell his home. We found no fault in the process the Council followed to investigate the nuisances. It therefore reached decisions it was entitled to make.

The complaint

1. The complainant, whom I shall refer to as Mr D, complained the Council failed to properly investigate his concerns about a statutory nuisance by a neighbouring business, and it failed to take enough enforcement action since Autumn 2020.
2. As a result, Mr D said he experienced distress due to noise, dust and smells. He also said he has been unable to sell his home as a result.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
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)
6. 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)

Back to top

How I considered this complaint

7. As part of my investigation, I have:
• considered Mr D’s complaints and the Council’s responses;
• discussed the complaint with Mr D and considered the information and recordings he provided;
• considered the information the Council provided in response to our enquiries; and
• considered the law, guidance and policy relevant to the complaint.
8. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and policy

Statutory nuisances

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
10. 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; and
• accumulation of deposits on premises.
11. 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.
12. 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.
13. 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.
14. 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

15. 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.
16. 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.
17. 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. This is known as Best Practice Measures.
18. 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.
19. 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.

Planning guidance

20. In circumstances where local planning authorities are considering a new development which is near existing businesses, planning policies and decisions should ensure the development can be effectively integrated. However, unreasonable restrictions should not be placed on existing businesses as a result. Where a business operation may have a significant adverse effect on a new development, the planning applicant should be required to provide suitable mitigation before the development is completed. (Paragraph 182, National Planning Policy Framework)

Council’s Policy

21. The Council’s noise nuisance policy says it will acknowledge reports of nuisances within five working days. It asks individuals to record the nuisance they are experiencing on log sheets and share these with the Council. Depending on the circumstances, it may also:
• Arrange for officer visits to gather evidence up to three times; and
• Install sound recording equipment up to two times.
22. The Council will subsequently decide what action, if any, should be taken. This may include:
• no further action;
• informal advice; or
• service of a formal statutory notice to abate the nuisance. If the notice is not complied with, it may take action through the courts.
23. The Council’s Enforcement Policy sets out how it will consider and investigate reported concerns about breaches of legislation. It aims to do so in an open and transparent manner whilst working with businesses to advice on compliance. Any enforcement action it takes will be proportionate and may also depend on the compliance of those involved.

What happened

24. In 2015 the Council granted planning permission for a development of houses. The development was next to a business, which had been in place for a long time. The developer agreed to enter into an obligation around an acoustic fence at the boundary of the development.
25. In 2019 Mr D bought one of the new homes located close to the business. He said the impact of living next to the business was limited at the time.
26. In 2020 there was a fire at the business, but the business resumed its work soon after.
27. In Autumn 2020 Mr D and other neighbours raised concerns about noise, dust and smells coming from the business.
28. The Council logged the concerns, visited the site and Mr D, and installed noise monitoring equipment his home. It found the fire may have damaged some sound insulation on the business’s equipment and premises.
29. In early 2021 the Council compared existing noise levels from the business with noise levels in the 2015 planning application. It found the noise amounted to a noise nuisance, but it did not find evidence of nuisances from dust or smells. As the business was willing to work with the Council, it decided to work with them to ensure suitable works were carried out to mitigate the noise.
30. The following is the key elements of the Council’s work with the business:
• In early 2021, the Council and the business agreed for a noise consultant to assess and make recommendations to mitigate the noise, which the business agreed to follow.
• In Spring 2021 the noise consultant shared its report with the Council and the business. This set out some works and mitigations to reduce the noise.
• In Summer 2021, the Council told the business it was not satisfied with the consultant’s recommendations. It set out further mitigation works which would be required and further monitoring of the noise was agreed.
• In late 2021, following further monitoring, the Council worked with the business and the noise consultant regarding specific noise from the extraction system and some equipment.
• In early 2022, the noise consultant and business proposed a mitigation and works plan to the Council. This included the dates the works would be completed by and the expected reduction in noise. The Council accepted this was Best Practice Measures but needed further clarification on some works.
• In Spring 2022, the Council continued to work with the noise consultant and the business and inspected the site to ensure works was being put in place to meet the agreed deadlines.
• The business completed the mitigation works in May 2022.
• In summer 2022, the Council inspected the site and found most of the mitigation works had been completed. However, it told the business it was not satisfied with some gaps, panels and noise curtains.
• The Council met with the business again, which agreed to complete further mitigation works in Autumn 2022, including to arrange for the noise consultants to assess the noise levels after all mitigation measures had been completed.
• In autumn 2022 the business completed the remaining mitigations, and the noise consultant assessed the noise levels from the business.
• The Council did its own noise assessment and compared the findings with the noise consultant. It found the noise had been appropriately reduced on all equipment used at the business. The business also agreed some equipment use should be limited and only occur between 8.00-16.00.

Mr D’s complaints

31. Mr D made his initial complaint to the Council in Spring 2021, and again in Autumn 2022. He said for over two years the Council had failed to:
• properly investigate and take enough action against the business for causing a statutory nuisance;
• engage properly and enforce noise nuisance concerns at the planning stage; and
• engage with Mr D constructively to resolve his concerns.
32. In the Council’s initial response in Spring 2021, the Council told Mr D it was progressing the noise concerns through working with the business to ensure a lasting solution and this was progressing. It found its officer had informed Mr D about the steps the Council was taking and responded to his questions. It also explained it would not consider Mr D’s recordings as it had gathered first hand evidence itself.
33. In response to Mr D’s Autumn 2022 complaint, the Council again found it had handled his concerns properly. It explained it:
• had investigated his concerns and identified a noise nuisance in 2021 through his diary sheets, site visits and installing noise monitoring equipment with Mr D. It found a noise nuisance did exist. However, it had not found evidence of a smell or dust nuisance during several inspections;
• had worked intensively with the business since to mitigate the noise, which included the involvement of a noise consultant, ongoing visits to the site, considering proposals and recommendations, and requesting further mitigation works;
• set out in detail the works which had been planned and completed to mitigate noise from the business;
• had assessed the noise after the agreed mitigation works through site visits and installing noise monitoring equipment with another resident, which it compared with the noise consultant’s findings. It found there was no longer a statutory noise nuisance;
• found there was still noise from the business. However, the business had been conducting its business before the housing development was built and it had sufficiently reduced noise in line with Beat Practice Means though its mitigations. It therefore decided no further action was required by the business;
• acknowledged the acoustic barrier installed by the developer had deteriorated. However, this agreement was an obligation on the landowner of the housing development where Mr D lives, not the responsibility of the business. It had passed this concern to its planning enforcement team for consideration; and
• found its officers had responded to Mr D’s concerns, questions and correspondence appropriately when updates were available throughout.
34. In each of the Council’s responses to Mr D it explained his right to take action in court against the business if he did not agree with its findings.
35. In early 2023 Mr D reported the business was operating after agreed operating hours, which caused a noise nuisance.
36. The Council told Mr D it had visited the business to inspect its operating hours on a few occasions but did not find it in breach of the operating hours or any significant noise concerns. It said it would therefore not consider his concerns further.
37. Mr D asked the Ombudsman to consider his complaint about how the Council handled his noise, dust and smell concerns from the business.
38. Mr D has continued to raise complaints about the business to the Council, but it told him it had already thoroughly investigated and found no statutory nuisance exists. It will therefore not reconsider the matter, unless changes in circumstances occur.

Analysis and findings

39. Mr D’s complaint is about the Council’s handling of his noise, dust and smell concerns from the business since late 2020. Parts of his complaint are therefore late. However, I have found it appropriate to exercise my discretion to consider Mr D’s complaint as he continued to raise his concerns with the Council, and due to the time it took for mitigation works to be completed by the business.

Was there fault in how the Council considered the noise nuisance?

40. I have not found fault in the process the Council followed when Mr D and other neighbours raised concerns about noise in late 2020. The Council followed its Policy when it inspected the site and neighbouring homes, installed noise monitoring equipment, considered Mr D’s noise diary sheets, and compared the noise levels with the noise levels in place when the housing development was approved. It was therefore entitled to reach its view a noise nuisance did exist.
41. The Council warned the business, which told the Council it was willing to take steps to reduce noise. The Council found the best way to abate the noise nuisance was therefore to work with the business to ensure sufficient steps to mitigate noise took place. This was a decision it was entitled to make in line with its Policy.
42. It took the business nearly two years to fully assess and complete all the mitigation works the Council and the noise consultant determined was necessary to mitigate the noise. While I accept this was a long time, I have not found the Council at fault for the delays. This is because it:
• had ongoing visits and were in regular contact with the business to assess what works was needed and what works had been completed to reduced noise;
• worked with the noise consultant to ensure the noise assessments were appropriate and informative to direct suitable recommendations for the mitigation works;
• chased the business for works plans, works progress and works completion. It also set out further requirements when it found more mitigations was needed for specific machinery used;
• observed the noise from the business from the site and neighbouring areas on several occasions, including installing noise monitoring equipment. This was before, during and after works had been completed; and
• considered the legal implications of taking further action against the business. It had regard to the fact the business had been present long before the housing development and it could therefore only require Best Practice Measures to be completed when a statutory noise nuisance was no longer found to be present.
43. In reaching my view, I was also conscious there were no statutory timescales the Council must adhere to, and the Council’s Policy warns its investigations and enforcement may take a long time.
44. In late 2022, the Council found the mitigation works completed by the business was enough to reduce the noise to acceptable levels. This was a decision the Council was entitled to make. This is because it correctly based the noise levels with pre-existing noise levels it found appropriate when the housing development was approved. It considered the noise consultants’ measurements and took its own measurements of current noise levels. As there was no fault in the process it followed, I cannot criticise its decision.
45. I acknowledge Mr D feels the Council should have installed noise monitoring equipment in his home, believes the Council wrongly collaborated with the business, and the noise consultant was not independent. However, I have not found the Council at fault for the reasons set out above.
46. While I have considered the noise recordings Mr D shared, only a court can decide whether a statutory noise nuisance is occurring. The Council told Mr D about his right to ask a court to consider whether a statutory nuisance exists. As Mr D continues to dispute the Council’s view and believes a statutory noise nuisance exists, he may wish to exercise his right to bring the matter to a court for its determination.

Was there fault in how the Council considered dust and smells?

47. The evidence shows the Council considered Mr D’s concerns about dust and smells from the business, including some pictures he shared of dust plumes within its area and dust next to its extractor fan.
48. The Council reached its view the business was not causing a dust or smell nuisance through several visits over the two-year period to the business and neighbouring property areas. This was because its officers observed no evidence of such nuisances.
49. I have not found fault by the Council how it considered Mr D’s concerns about a dust and smell nuisance. This is because it properly considered his concerns in line with its Policy by inspecting on several occasions and reached a view it was entitled to make. I cannot therefore criticise the outcome.

The acoustic fence and planning considerations

50. Mr D said the Council failed to properly consider the impact the business would have on the new housing development at the planning stage.
51. I cannot consider any concerns Mr D had about the Council’s 2015 planning decision for the development where he lives. This is because this matter is late, and there is no good reason to exercise my discretion.
52. The Council agreed it had observed the acoustic fence has deteriorated. However, it explained to Mr D this was the landowner of the housing development’s responsibility under the agreement in place following the planning approval. The business was not responsible for the upkeep of the fence under the agreement. It explained it is progressing Mr D’s concerns with the landowner.
53. I agreed with the Council. The deterioration of the fence is a matter for the landowner, and not the business. The Council said it has started the process to address this concern with the landowner. Mr D can raise a new complaint with the Council about its handling of the landowner’s fence responsibilities under the agreement for the development, if he is not satisfied with the steps it takes to address his concerns.

Was there fault in how the Council engaged with Mr D?

54. I have not found the Council at fault for how it engaged or kept Mr D informed. This is because the evidence shows the Council was in regular contact with Mr D between late 2020 until its final complaint response in early 2023. This included:
• its confirmation it would investigate his concerns;
• installing monitoring equipment in his home;
• updates on its initial findings of a noise nuisance, its decision to work with the business to mitigate noise, subsequent mitigation plans and works, and post mitigation works noise assessment findings; and
• its responses to his questions and complaint.
55. While the Council may not have responded to each and every concern Mr D raised, or in the detail he expected. In line with its Policy, it was not required to do so as it says it will log concerns, provide updates and share its findings.
56. I also acknowledge Mr D did not agree with the Council’s decision to install noise monitoring equipment with another neighbour known to the Council after the mitigation works had taken place and felt it should have considered his noise recordings.
57. However, the Council was entitled to decide where to place its noise monitoring equipment, which in this instance was with another neighbour next to the business. It also acted in line with its Policy which says it will not consider noise recordings from complainants, but it will conduct its own first-hand evidence. I have therefore not found the Council at fault for how it engaged with Mr D.
58. Finally, the Council has refused to respond further the Mr D’s reports about noise from the business since early 2023. It explained this is because it had thoroughly investigated Mr D’s concerns.
59. I have not seen evidence there have been any significant changes in operations or noise from the business since the Council assessed its noise levels in late 2022. I would therefore not expect the Council to reinvestigate or continue responding to Mr D’s concerns. It appears appropriate to me for Mr D to bring his concerns to a court to decide whether it believes a statutory noise nuisance exists, and if so, what steps the business should take to mitigate this further.

Back to top

Final decision

60. I have completed my investigation with a finding of no fault in the process the Council followed to investigate and respond to Mr D’s noise, dust, and smell concerns from a neighbouring business. It therefore reached decisions it was entitled to make.

Back to top

Investigator's decision on behalf of the Ombudsman