Summary: Mr X complained about the Council’s investigation into dust nuisance from a nearby business. The Council investigated Mr X’s concerns without fault. It was satisfied the business has taken all reasonable steps to mitigate the dust and that no statutory nuisance exists.

The complaint

1. Mr X complains the Council failed to investigate and deal with his reports of dust nuisance and pollution from a nearby business premises.
2. Mr X said the dust was affecting his own business and causing a health and safety risk to him and his staff. Mr X wants the Council to ensure the business puts measures in place to reduce the levels of dust all year around.

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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 how the organisation made its decision, 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)

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What I have and have not investigated

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. I have investigated the Council’s actions from September 2023 until Mr X complained to us in November 2024. Matters have been going on since 2022 however it was reasonable for Mr X to have complained to us earlier about any concerns he had about the Council’s actions pre-September 2023.
7. Although I have not investigated actions before September 2023 I have referred to the period as background and for context.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Statutory nuisance

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include noise, dust and pollution from industrial, trade or business premises.
11. Activities a council might decide are a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street;
• smells and fumes from industry, trade or business premises;
• accumulation of deposits on premises.

12. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits.
13. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
14. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. 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.

Section 82 of the Environmental Protection Act 1990

15. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.

What happened

16. The following is a brief chronology of events. It does not contain everything that happened or all the information reviewed as part of this investigation.
17. Mr X owns a business. Near to his business is another business (Business Z) which deals in the supply of aggregate materials such as rocks, stone and sand. The materials are processed on the site of Business Z and then moved off site using large trucks.
18. Mr X has raised issues with the Council since before 2022 about both dust nuisance coming from Business Z and about material being dropped onto the highway from the trucks which transport the materials.
19. The Council said its Environmental Health (EH) team first became involved in 2022 when it visited Business Z following concerns raised by Mr X. At this time the EH team identified issues at Business Z which meant the trucks were pulling slurry onto the highway. Business Z put wheel washing measures in place for the trucks before they left the site.
20. In May 2023 the EH team visited Business Z again and found unacceptable dust levels and excessive material being brought onto the highway. The Council considered issuing Business Z with an abatement notice. However Business Z made a significant investment to reduce the nuisances including a rebuild of the yard surface area between the wheel wash and site boundary. It noted all non-highway areas had been resurfaced, a new dust suppression system was in place and a sprinkler system.
21. The Council’s view at the time was that Business Z had used the best practicable means to mitigate excessive material being brought onto the highway and to reduce dust emissions.
22. Records show the Council complete two further inspections during the summer of 2023 to confirm that measures were in place and working.
23. Mr X reported concerns again to the Council in September 2023 about the levels of dust. Records show the EH officer visited Business Z a few days later and observed no visible dust. The officer said the road and site entrance was clean and the dust suppression system was working. The Council found no statutory nuisance and closed the case in November 2023.
24. In May 2024 Mr X complained to the Council. He complained about continuing problems with dust and a lack of action from the Council and submitted videos in support. Records show the Council carried out a site visit and found the wheel washing machine was faulty, but Business Z fixed this promptly.
25. The Council responded at stage one of the complaints process and said it had spent considerable time with Business Z to rectify the issues. The Council said Business Z had taken reasonable steps to resolve the dust issues.
26. The Council carried out a further site visit with Business Z in October 2024 and found the site was all in order and no visible dust. It closed the case.
27. Mr X escalated his complaint to stage two of the complaints process in November 2024. He said the dust problems were unresolved and it was affecting his business and his employees’ health. He referred to material falling of the trucks once they leave Business Z and said the dust suppression measures were inadequate. Mr X remained unhappy with the investigations carried out by the EH team.
28. The Council responded to Mr X in November 2024. It outlined the visits it had made to Business Z and the measures taken to reduce the dust. The Council said the dust suppression system and wheel wash machine was operating correctly and Business Z had damping down and sprinklers in operation. A road sweeper regularly cleaned the highway outside the site. The Council said it was unreasonable to expect no dust at all, however it was satisfied all reasonable measures were in place. The Council said no statutory nuisance existed. It advised Mr X of his right to take private action in the court.
29. Mr X remained unhappy and complained to us.
30. Since complaining to us the Council outlined further visits it had taken. The Council said it visited Business Z five times between March and June 2025 and said the roads were clean and there was no visible dust. The Council reiterated that there was no statutory nuisance and it had received no other complaints about dust nuisance from any other business or person in the three year period since Mr X began complaining.

My findings

31. The Ombudsman is not an appeal body. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
32. The Council has taken steps to investigate Mr X’s concerns and to decide whether a statutory nuisance existed. It considered information and evidence from Mr X, carried out numerous site visits and has overseen Business Z put measures in place to reduce the dust and keep the highways clean. The Council is satisfied suitable measures are in place and that there is no statutory nuisance and therefore it decided no further action was necessary. While Mr X disagrees with the Council’s conclusions, there is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.
33. The Council has evidenced that it is continuing to monitor Business Z with the visits it has carried out during 2025. It is open for Mr X to complain again to the Council if he has further concerns.
34. It is also open to Mr X to consider taking his own private proceedings in the magistrate’s court under section 82 of the EPA if he remains concerned about the alleged dust and truck nuisance from the site.

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Decision

35. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman