Summary: Mr X says the Council has not acted on his concerns about pollution from a Waste Transfer Station near his home. The Ombudsman has found some evidence of fault by the Council. However, he does not consider this calls into question the Council’s decisions there is no statutory nuisance and no grounds to close the Waste Transfer Station. For this reason, he has ended his investigation of this complaint.

The complaint

1. The complainant, who I shall call Mr X, says the Council has not acted on his concerns about pollution caused by a Waste Transfer Station (WTS) near his home. He says the pollution caused by vehicles accessing the station and its activities are causing a level of pollution which is affecting his health. Mr X would like the Council to address his concerns and, ideally, relocate the WTS or create a new access road to it.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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

5. As part of my investigation I discussed the complaint with Mr X and considered information he provided including photos and videos. I made enquiries of the Council and considered its response. I set out my initial thoughts on the complaint in a draft decision statement and considered Mr X’s comments in response.

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What I found

Regulatory, legislative and policy background

6. If a business uses, recycles, treats, stores or disposes of waste then it must apply to the Environment Agency for a permit do so.

The Environmental Protection Act 1990, Section 79

7. This explains what matters might constitute a statutory nuisance. It includes any dust, steam, smell or effluvia arising from industrial, trade or business premises that is prejudicial to health or causing nuisance.
8. The Act also says a local authority must take all reasonably practical steps to investigate a complaint about a possible statutory nuisance within its boundaries.

Tower Hamlets Environmental Health

9. The Council’s website says that it will investigate complaints about matters that may constitute a statutory nuisance. It will do this by collecting evidence of the nuisance which will be assessed by an Environmental Health Officer who will use their professional judgement to decide if the nuisance is a statutory nuisance.

Background

10. The WTS complained about has been in its current location for many years. It has a license to operate granted by the Environmental Agency. The site is used by the Council’s waste contractor and other private users.
11. In 2002 the Council granted planning permission for a housing development to be built close to the WTS. As part of the planning process an Environmental Impact Statement was submitted which considered the issue of emissions from the WTS. It concluded it would have no detrimental impact on the health of future residents of the development.
12. Mr X moved into a flat within the development. His home faces the main road used to access the WTS.
13. In 2018 Mr X complained to the Council about the impact of pollution from vehicles accessing the site and dust from its activities. This culminated in Mr X submitting a Stage Three complaint to the Council.
14. In response the Council said the managing agent of the WTS had introduced measures to deal with some of the negative impacts of its operations. These included cleaning Mr X’s street twice a week and doing a monthly deep clean. The Council also said that it was acting to prevent leachate leaking from vehicles but could only do so if they were being used by its waste contractor.
15. However, problems persisted and in March 2019 Mr X made a new report about fumes from vehicles using the WTS. In response the Council introduced two signs asking drivers not to leave their engines idling when waiting to access the WTS. It also placed two further signs within the site and discussed the matter with the managing agent.
16. In April Mr X reported problems with dust from the WTS. An Environmental Health Officer visited Mr X’s street but found no evidence of dust. The Council asked Mr X to report any future occurrences so it could investigate.
17. In September Mr X submitted a new complaint to the Council about its handling of concerns about pollution from the site including exposure to dust, smells, dropped waste and queueing traffic. He said the Council had not taken appropriate action to address these matters and he would like the Council to close or relocate the site.
18. The Council replied in November and did not uphold Mr X’s complaint. It said the managing agent had introduced new measures such as asking its commercial users to use the site at off-peak times and increasing the number of compactors to reduce queue times. It also told its waste contractor to turn off the engines on their vehicles when queuing for the site and redirected some crews to other sites. Monthly meetings with the managing agent and its waste contactors would help it continue to monitor the WTS.
19. Unhappy with the response Mr X escalated his complaint to Stage Two of the Council’s complaints procedure. The Council’s response reiterated the measures it had taken. It also said it would visit Mr X in January 2020 and provided him with diary sheets to log incidents. The Council partially upheld Mr X’s complaint because it had not offered a visit and diary sheets earlier.
20. On 7 January 2020 two Environmental Health Officers visited Mr X. They walked around the local area and Mr X pointed out areas with green moss and lichen which he said was evidence of pollution. They also visited Mr X’s home and he pointed out what he considered to be discolouration of his walls and furniture. The officers also visited the WTS and observed vehicles queuing there.
21. The officers advised the complaints team they had not seen any evidence of excessive pollution. They did not consider Mr X’s home was discoloured as he claimed, nor did they consider the presence of moss to be excessive or indicative of high levels of pollution. They also said that they had not witnessed vehicles queuing for the site with their engines on, although this might happen at other times. Finally, they found the site to be in good order. For these reasons they concluded there was no statutory nuisance and no grounds to take any further action.
22. When Mr X reported idling vehicles on 20 January, the Council told him to record the incidents in the log sheets it had provided and to return them. Mr X did not do so saying the Council was aware of the problems.
23. In August Mr X reported high levels of sulphur dioxide which he attributed to vehicle emissions linked to the WTS. The Council looked at data from its nearby air quality monitoring station that monitors levels of nitrogen oxide, which is mainly emitted from vehicles. It found these levels were below the legal limit. The Council explained it does not monitor sulphur dioxide.
24. Mr X remains unhappy and is adamant that pollution from the WTS is affecting his health. He says it is turning his hair and teeth yellow and is compromising his ability to heal from infections or illnesses.

Analysis

25. Mr X reported issues about pollution from the WTS on two occasions in 2019 yet he was not provided with diary sheets in response. I appreciate officers visited in connection with the dust report he made in April 2019 and found no evidence of dust but this did not preclude the Council from providing him with diary sheets to record future incidents alongside the telephone call it suggested he make.
26. The Council says it did not provide Mr X with diary sheets following his March 2019 reports of pollution from idling vehicles because it installed signs. While I recognise the Council took proactive action to help mitigate the negative impacts of activity at the WTS, it should still have issued diary sheets to Mr X. This would have allowed him to record the effectiveness of the signs and helped him substantiate his subsequent complaints about the same matter.
27. While the Council should have provided Mr X with diary sheets earlier, I do not consider this has caused Mr X a significant injustice. Subsequent investigation of his concerns in January 2020 did not find evidence of a statutory nuisance. I consider that it is unlikely completed diary sheets from Mr X in 2019 would have altered the Council’s view. Their absence did not prevent the Council seeking to introduce measures to help the WTS work more effectively and encourage vehicle drivers not to leave engines idling when queuing. I do however recognise that they may have resulted in the Council coming to this view sooner.
28. Mr X disagrees with the Councils’ assessment that there is no statutory nuisance. The Ombudsman can only question the merits of the Council’s decision if it finds fault with how that decision has been made. I have not found any evidence of such fault. The Council visited Mr X in January 2020 and inspected his home and the surrounding area for evidence of pollution. It found no evidence a statutory nuisance existed. I note that Mr X has refused to complete the diary sheets provided by the Council. I would urge him to do so as this may provide grounds for the Council to reconsider its view.
29. Lastly I note that Mr X would like the WTS to be moved to another location or shut down. This is not something the Ombudsman can recommended. The WTS has been granted a license for the next eight years and is part of the Council’s long-term plan for waste management in the area. Furthermore, the Council’s investigation found no evidence of wrongdoing at the site and concluded it was being well run. I also note the managing agent has introduced changes to its processes to help mitigate the impacts Mr X has complained about. I therefore do not see there are any grounds on which to question the Council’s decision to allow the site to continue operating.

Agreed action

30. The Council should apologise to Mr X for not providing diary sheets to him in response to his initial complaints in 2019. It agreed.

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Final decision

31. I have ended my investigation of this complaint as I have not found any evidence of fault which questions the merits of its decision on Mr X’s concerns and it agreed to my recommendation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman