Summary: Ms D complains the Council has failed to prevent an ongoing odour nuisance caused by a nearby food outlet. The Ombudsman has not found evidence of fault. He has completed the investigation and not upheld the complaint.

The complaint

1. The complainant (whom I refer to as Ms D) says the Council has failed to sufficiently investigate and enforce a nearby food outlet which is allegedly causing an odour nuisance.

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What I have investigated

2. I have looked at events from August 2019 onwards. I explain below why I have not looked at earlier incidents.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. 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

6. I have carefully considered the information supplied by Ms D. I asked the Council questions and examined its response and case files.
7. I shared my draft decision with both parties.

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What I found

What happened

Background

8. In 2017 the Council started to receive complaints about waste disposal issues caused by a food outlet. It found fault and issued a Fixed Penalty Notice. In 2018 the Council continued to receive complaints about overflowing commercial waste bins and odours. The Council met with the business owner (owner) and they agreed to increase commercial waste collections.
9. In 2019 the Council continued to receive complaints from Ms D. The Council requested the owner obtain an additional bin. Ms D continued to contact the Council and said the bins were often left open allowing waste to fall out and odours to spread. The Council carried out site visits and found the area clear of waste it also met with the owner. Through the year the Council and Ms D corresponded and site visits took place by Officers.
10. In July Ms D told the Council she believed the smell from the business was a statutory nuisance. The Council visited the site but did not find a statutory nuisance. Ms D disputed the methods used by the Council to assess the odours.

Events I have investigated

11. In August 2019 Ms D stayed in contact with the Council about strong odours. On 5 August, the Council told her an Officer had attended the site again and found a “faint smell” only when stood next to the bins. In September, the Council sent a substantive response to points raised by Ms D. It said it had taken “all reasonable steps” and that enforcement had to be proportionate. In this case there was not enough evidence to warrant the Council seeking a prosecution. Ms D and the Council continued to correspond. The Council carried out site visits and found no issues.
12. In 2020 Ms D reported further odour issues to the Council. Officers visited the site including in June, July and August and found “no actionable issues”. Also, in August the Council replied to a Member’s enquiry about the case. It said Officers had agreed with the food outlet various measures to prevent problems including daily cleaning of bins; daily waste collections; freezing fish waste; double bagging the waste. Site visits had confirmed the owner was following the Council’s recommendations.
13. In September Officers found an accumulation of food containers beside the food outlet bins. There was only a mild smell. On 14 September Officers revisited and the area was cleared with no smell. Three days later the Council told Ms D it would serve a Fixed Penalty Notice for the waste containers it had witnessed. It would also issue a Community Protection Warning requiring the owner clean the bins out and this was valid for 28 days. Also, in September a neighbour of Ms D’s complained to the Council about pools of dirty water from the food outlet which were settling in the road next to their homes. This gave off a strong odour. From the limited records I have it seems the Council started to consider this point in November. Further site visits took place through to the end of December with no significant issues evidenced by Officers.
14. On 6 January 2021 Environmental Health asked Highways if the area near the food outlet and homes could be resurfaced. Water from the bin cleaning process seemed to pool in pot holes and these pools had an odour. On 19 January the Council met Ms D and her neighbour at the site. An Officer updated them about Highways but explained it would not be classed as priority works. He also said the way waste was being handled was subject to change and so bins at the outlet would be removed. At the end of the month Ms D chased up the Council about the undertakings given. The Council then emailed Highways twice in February. On 24 February Highways said it would carry out a site visit in March and works would be subject to budget constraints. At the end of February an Officer visited the site and noted “bin juice” leaking out of bins, this did not cause a strong odour or a statutory nuisance. However, the “juice” mixed with bleach from cleaning would not easily drain away because of the uneven highway. When it formed into pools this was a cause of smells. The road needed resurfacing and she advised the owner to use non bleach cleaning products.
15. In March, the Officer who had recently visited the site emailed her findings to colleagues. I understand the resurfacing works have been approved and are due to take place in August.
16. The Council says it had planned to change from bins to a “black box” system which is being trialled in part of the Borough. This involves replacing bins with sacks which are stored in boxes. In this case Officers decided “it would not be practical” to use this system at the food outlet.

What should have happened

17. Under the Environmental Protection Act 1990 the Council is required to consider reports of alleged statutory nuisance including odour nuisance.
18. When the Council receives a report of an alleged statutory odour nuisance the case is allocated to an Officer to investigate. Officers follow Government guidance (Nuisance smells: how councils deal with complaints) and the investigation process for assessing a statutory nuisance. That means they must assess the type of odour and take account of a variety of factors such as the times it appears, type of smell, the area, frequency and strength. Assessments involve a site visit. It is for the Officer to determine if there is a statutory nuisance. If an Officer is unable to witness a statutory nuisance, they can decide to complete the investigation. If they decide to pursue the case the Officer may ask the complainant to complete diary sheets (this is optional, there is statutory requirement on a council to use diary sheets) or carry out further monitoring visits. The Officer will also contact the business owner and where an odour issue is identified the Council will aim to work with the business to remedy matters. If the Council witnesses a statutory nuisance, it should issue an Abatement Notice.
19. In respect of further enforcement action in cases where a statutory nuisance is found, the Council must consider if this is appropriate and likely to succeed in court. Where a business is using “best practicable means” to stop or reduce an odour nuisance the Council can decide not to pursue formal action.
20. Formal odour assessments can be carried out by the Council. However, they are usually for large scale commercial premises rather than small businesses. If the Council’s investigations find a business is failing to employ “best practicable means” to remedy the nuisance it can require the business owner commission a formal odour assessment.
21. The Council will also consider reports of a business incorrectly disposing of food waste. If the Council finds fault it can serve a Fixed Penalty Notice and if the problems persist without co-operation from the perpetrator to rectify matters the Council can consider further action including prosecution.

Was there fault by the Council

22. Ms D feels the Council should have found a statutory odour nuisance and taken enforcement action. I have not found any fault by the Council. The evidence shows Officers regularly attended the site in response to odour nuisance reports. At no point did the Officers witness a statutory nuisance. I have explained to Ms D that her reports of an alleged nuisance were not sufficient for the Council to take enforcement action. Officers needed to witness it themselves in order to have a strong evidential basis to justify formal enforcement action. No such evidence was found in this case which meant the Council had no option to seek formal enforcement.
23. In respect of other forms of enforcement action there is also no fault by the Council. Officers issued Fixed Penalty Notices where appropriate and Community Protection Warnings. In each event Officers checked the food outlet had complied with the required remedial actions. The Council has correctly advised Ms D that enforcement action is not appropriate in every case. The onus on the Council is to consider whether enforcement leading to prosecution is proportionate and reasonable. If a business owner is complying with requests from the Council, it is not obliged to seek a prosecution. That applies to this case. The Council had the right to decide that further enforcement would not be reasonable even if Ms D disagrees.
24. Ms D has also asked me about odour diaries. The Council is not obliged to issue diaries as part of a statutory nuisance investigation. It is for the Council to decide which resources would best aid an investigation. Diary sheets alone would not be proof of a statutory nuisance, Officers would still be required to witness the problem themselves. Given that Officers regularly attended the site I see no fault by the Council.
25. It is unfortunate the Council gave an informal undertaking to remove the food outlet bins in 2021 and then changed its mind. Whilst the Council has a right to change its view if a measure would not be practical, it is disappointing the decisions were not better and more quickly communicated to Ms D. That said I do not find this constitutes a significant fault.
26. Once the issue of pooling water was raised with the Council in 2020 Officers looked into this from November onwards. I am satisfied the Council has taken appropriate steps to find a resolution to this matter.
27. I appreciate this has been a distressing time for Ms D and that she firmly contends there is a statutory odour nuisance. It is not for the Ombudsman to determine whether a statutory nuisance has occurred, that is for the Council to decide. The Ombudsman cannot question the merits of decisions taken by the Council where it has acted in line with procedures: that applies to this case.

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Final decision

28. I have completed the investigation and not upheld the complaint.

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Parts of the complaint that I did not investigate

29. I have not looked at events prior to August 2019. The Ombudsman expects a complaint to be made within 12 months of the problem arising.

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Investigator's decision on behalf of the Ombudsman