Summary: Mr X complained about the Council’s investigation of environmental health issues he reported and its complaint handling. I have not found the Council to be at fault.

The complaint

2. Mr X complained about the Council’s investigation of environmental health issues he reported and its complaint handling.
3. He said the Council failed to provide a service because:
1. It did not deal with environmental health issues he reported;
2. It failed to address his complaints as its complaints policy is not fit for purpose;
3. He has been harassed by a Council officer, and;
4. He suffers with his mental health and was subjected to lies, abuse, bullying, antagonisation, intimidation and defamation.

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What I have investigated

4. I have investigated the Council’s handling of Mr X’s environmental reports and its complaints procedure. This included the nature of the Council’s communication with Mr X.
5. Mr X has made complaints about individual Council officers failing to do their job, as well as bullying, harassing and intimidating him. This has been examined in the context of the service the Council is providing. I have not explored whether individual officers bullied, harassed or intimidated Mr X. He has a legal remedy for this. I understand Mr X contacted the police and they took no action.
6. I have not investigated Mr X’s complaint about defamation. Mr X has a legal remedy for this.
7. Some aspects of Mr X’s complaints are several years old. These are late complaints which I have not investigated.

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The Ombudsman’s role and powers

8. 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)
9. 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)
10. 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

11. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• The Council’s complaint responses and case notes for the complainant.
• Environmental Protection Act 1990 (Section 79).
• The Council’s procedures for investigating nuisance complaints.
12. I wrote to Mr X and the Council with a draft of this decision and gave them an opportunity to comment.

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What I found

13. Under section 79 of the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance. The potential nuisance must unreasonably and substantially interfere with the use or enjoyment of a home or other premises or injure health or be likely to injure health. Statutory nuisances can be caused by issues such as:
• Smoke;
• Dust, steam, smell or other effluvia arising on industrial, trade or business premises;
• Artificial light;
• Noise
14. Generally, the statutory nuisance will need to be witnessed by an environmental health officer. The officer should come to an independent judgement about whether a nuisance exists by considering factors such as duration, intensity, location, and the time of day it occurs. If an officer decides a statutory nuisance is taking place, they can issue an Abatement Notice.
15. Businesses can offer a defence against an abatement notice by showing they operate using the best practicable means to prevent the nuisance.
16. The Council’s website confirms it can investigate alleged nuisance. The complainant will need to provide information relating to the nuisance and how it affects them and may be asked to keep a diary of events.
17. The Council’s enforcement policy states it uses advice, guidance and support as a first response. This may be in the form of a warning letter to an individual or business asking them to rectify the issue as quickly as possible.
18. Under section 82 of the Environmental Protection Act 1990, a member of the public may bring a claim of statutory nuisance in the magistrates’ courts.
19. Planning enforcement is discretionary. Formal action should happen only when it is a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

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What happened

20. Mr X lives in a flat above nearby food outlets, including a pizza shop, a chicken shop, an Italian restaurant and an Indian takeaway. Commercial bins are stored on an access road beside the pizza shop. Mr X’s complaint is about odour nuisance from the bins and from the extraction flue of one of the food outlets.
21. Mr X reported issues to the Council on 6 July 2018. He said bins from the takeaway shop were open and overflowing with rubbish, causing an odour nuisance.
22. The Council’s records confirm officers visited the site on 10 July and 30 July 2018. They found bins from a chicken and pizza shop to be overfilled but all other bins were closed and locked.
23. The Council spoke to Mr X on 11 July 2018 and told him they would pursue the chicken and pizza shops about excess waste and bins not being locked.
24. The Council wrote to the owner of the takeaway shop on 12 July 2018 to confirm the issues found and told them to clear the bin area.
25. Also on 12 July 2018, Mr X reported the owner of one of the takeaway shops had reduced the height of the flue from their extraction unit, causing smell to be emitted directly at the height of Mr X’s window.
26. The Council spoke to Mr X on 17 July 2018 before sending a letter to the owner and Mr X on 21 August 2018. The Council’s letter to Mr X states the nuisance has been raised with the takeaway owner and it hoped this would resolve the problem. The Council asked Mr X to keep a diary if the problem continued.
27. Mr X telephoned the Council on 18 September 2018 to complain about what he thought was a lack of action on the Council’s part following his nuisance reports.
28. The Council’s records confirm it carried out site visits on 26 September, 8 October and 25 October 2018.
29. The Council spoke to Mr X on 28 November 2018. It told him the situation was being monitored. Site visits took place, but no statutory odour nuisance was identified. Mr X thought he was being called a liar and wanted the bins to be moved away from underneath his window. The Council told Mr X the bins are on private land and it can only tell the owner to move them if they observe a statutory nuisance.
30. Mr X then made a Freedom of Information (FoI) request so he could see the action the Council had taken.
31. Further site visits took place on 30 November, 11 December and 20 December 2018. Officers drove past the site and noted its condition from their vehicles.
32. The Council wrote to Mr X on 21 December 2018. It told him the pizza shop was not responsible for the black flue pipe Mr X said had been lowered without permission. The pizza shop has a silver flue at roof height. The Council confirmed officers noticed a smell of food in the street, but it was not considered excessively strong and it could not be blamed on a single building as there is more than one food outlet on the street.
33. The Council said on the days it visited, the bins were tidy, closed, and there was no smell from them. It repeated it could not force the owner to move the bins unless there is evidence of a statutory nuisance.
34. The Council confirmed its investigations had not showed a statutory nuisance, but it would continue with evening visits to the site. It apologised for not sending a letter to confirm this, it was an error on the officer’s part. It referred Mr X to its complaints policy if he remained unhappy.
35. The Council sent a letter to Mr X and the shop owner on 14 January 2019. It told Mr X it witnessed the poor condition of the site and reminded the owner of their responsibilities. Two bins were in an unacceptable condition on 7 January 2019 and the Council met with the owner about it. The Council would continue its monitoring.
36. Mr X sent an email to the Council on 6 February 2019. He complained about smell from the black flue pipe near his window. He thought this belonged to the Italian restaurant. Mr X said he never told the Council the black flue came from the pizza shop. He made another FoI request.
37. The Council’s records show it looked into the issue of the black flue pipe and found it was lowered by the owner of the Italian restaurant in response to complaints from residents about noise and vibration. The owner said the flue was rarely used, and usually only at weekends. The officer who inspected the flue did not consider it to be causing a smell.
38. The Council’s records show the police contacted the Council on 11 June 2019 about a harassment complaint from Mr X. The police did not consider emails sent by a Council officer in their work capacity to be harassment.
39. On 16 June 2019 Mr X reported odour nuisance from nearby restaurants and takeaways when cooking. He said it was occurring for a few hours around midday and all evening.
40. The Council wrote to Mr X on 17 June 2019 to confirm officers met with him on 14 June 2019 to discuss his concerns about commercial waste bins. The Council reiterated it cannot ask the owner to move the bins as they are on private land, but Mr X can approach the owner and ask. If successful, the Council can ask the owner to cut back vegetation to allow waste disposal vehicles to access the private road.
41. The Council spoke to Mr X by telephone on 27 June 2019 to discuss the odour complaint. Mr X considered the shortened black flue to be evidence of a nuisance. The Council said it needed to witness the odour and an officer would be available the next day to inspect. The officer asked Mr X to telephone them when he could smell the odour.
42. The Council posted letters to Mr X and the shop owner on 28 June 2019 about the odour. The letter to Mr X said the Council told the shop owner about the complaint. The Council asked Mr X to telephone an environmental health officer if the smell continued and they would try to visit straight away. The Council also gave Mr X a telephone number for Community Action Network Rangers who could be a witness to the nuisance.
43. The Council’s case notes state Mr X did not make any further reports about odour nuisance or telephone the environmental health officer to arrange a visit. The Council closed the odour nuisance complaint on 27 August 2019.

Complaints

44. Mr X complained to the Council on 2 January 2019 about its response to his FoI request and about the service received from the Environmental Health Department (EHD). He asked that a particular Council officer did not deal with his complaints. I shall refer to them as Officer A. Mr X accused Officer A of bullying and harassment.
45. The Council wrote to Mr X on 7 January 2019 to acknowledge his complaints. It said it could not meet his request for Officer A not to deal with his complaints, as they manage the Council’s complaints service. It also said his complaints of bullying and harassment about Officer A were unfounded.
46. Mr X made a further complaint on 19 January 2019. He said the officer who responded on 7 January 2019 failed to tackle the issue of bullying and did not disclose details of the department they worked for.
47. The Council wrote to Mr X on 22 January 2019 with its response to his complaint about the FoI request he made. The Council said the information it provided related to dates and durations of site visits as well as location information. It attached evidence including the case history, emails and copies of officer’s notebooks. The Council said Mr X could complain to the Information Commissioner’s Office if he remained unhappy.
48. The Council wrote to Mr X separately on 30 January 2019 with its response to his complaint about the EHD. It said the matters he was complaining about were still being investigated by the EHD. The environmental health manager spoke to Mr X about the lack of updates and calls not being returned. They wrote to Mr X on 21 December 2018 to apologise for not providing detail about the action the EHD took.
49. The Council apologised Mr X felt he wasn’t involved in the investigation, but officers must witness the conditions on site to judge if a nuisance exists. The investigation was ongoing, and evidence was being gathered. It confirmed Mr X’s statements help, but more evidence is needed for enforcement action to be taken.
50. The Council said the investigation into the black flue was ongoing and it would be monitored.
51. Officer A said they were disappointed Mr X felt they were not polite or respectful, but their job is to provide clear and accurate information. The Council said officers were trying to provide a service to Mr X and asked him to be courteous so there can be a positive relationship. The Council said Mr X could ask for an internal review if he remained unhappy.
52. Mr X made a further complaint about the EHD on 22 April 2019. He said the issues he reported remained the same after twelve months.
53. In response to Mr X’s further complaints, the Council carried out an internal review. It wrote to Mr X on 23 May 2019 and made the following findings:
• Its EHD were acting on his complaint and needed to collect evidence.
• The officer who contacted Mr X on 7 January 2019 used their corporate signature which confirmed their role as Team Manager (Legal) and Deputy Monitoring Officer.
• Officers had been polite and respectful to Mr X whereas Mr X was not. It said his actions could be viewed as bullying and harassing towards Council officers and it will consider formal action if he does not change his behaviour.
54. The Council signposted Mr X to the Ombudsman if he remained unhappy.
55. Mr X brought his complaint to the Ombudsman on 26 June 2019. He said the Council did not follow its complaints policy, made false accusations about him and the Council’s Chief Executive took the same view as Council officers when reviewing his complaints.
56. The Council also wrote to Mr X on 28 June 2019 to tell him he would be treated as a vexatious complainant going forwards. The Council confirmed this was the result of an internal meeting as Mr X had not changed his behaviour. The Council said Mr X met 14 of the 20 criteria from its vexatious complainants’ policy.
57. Since bringing his complaint to the Ombudsman, Mr X has put in further complaints to the Council on 28 June 2019, about the EHD, and on 30 August 2019, about the internal review.
58. Mr X complained about the Council’s EHD again on 4 September 2019. He said the Council had not taken any action over his nuisance complaint. It ignored his evidence and took the word of the shop owner.
59. The Council emailed Mr X on 26 September 2019. It said the advice environmental health officers gave about how they assess nuisance complaints was correct. It said this is separate from planning enforcement. The Council gave details of the lowered black flue to the planning department to look into. The Council again signposted Mr X to the Ombudsman.

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Analysis

60. The Ombudsman is not an appeal body and cannot comment on the merits of judgements and decisions made by the Council if there is no fault in the process. Our role is to review the process by which decisions are made.
61. Mr X has experienced continuing issues with the commercial waste bins outside his property and with odour nuisance from the bins and food outlets. He is unhappy with the result of the Council’s investigations and with what he considers to be the Council’s lack of action. When the Council told Mr X it had to observe a statutory nuisance, or that in the opinion of its officers the situation does not amount to a statutory nuisance, Mr X thought the Council was calling him a liar.
62. I have seen photographs Mr X took of the condition of the commercial bins, and I have no doubt the smell has been a nuisance to him. However, for the Council to take enforcement action against the owner, it must be able to observe a statutory nuisance taking place. This is what the Council told Mr X. That was not fault.
63. I have seen the Council’s records of the action it took in response to Mr X’s reports. After Mr X’s first report about the bins, the owner of the shop took the action the Council asked, and the Council observed the situation improved on the later visits it carried out.
64. During later site visits, officers could smell food from the street but did not know which shop the smell came from. They did not consider the smell was excessive.
65. The decision about whether a statutory nuisance exists is down to the professional opinion of the environmental officer who assessed the complaint. Part of their consideration is whether the owner’s actions were unreasonable, how often the problem occurs, at what times and for how long it lasts. The officer’s opinion differs from Mr X, but that does not mean the Council is calling Mr X a liar.
66. The Council acted on Mr X’s reports of nuisance. It carried out site visits on at least 15 occasions, which includes some monitoring from a vehicle while driving past. It discussed the issues with the shop owners, it wrote warning letters and monitored the situation. Mr X is not happy with the action the Council took, or that the Council did not always return his telephone calls or provide regular updates. However, officers did discuss the issues with Mr X on several occasions and sent letters to him at different times throughout the investigation. I do not find the Council at fault for the way it looked into Mr X’s nuisance reports.
67. The Council considered all relevant information and acted in line with its policy. I cannot tell the Council what enforcement action it must take, and I cannot question the merits of its decisions where they are properly made.
68. The Council’s planning department deal with complaints about work done without planning permission. The Council told Mr X the shop did not need permission to lower the black flue. Mr X is free to approach the Council’s planning department if he wants an explanation about this.
69. Mr X is also unhappy with the Council’s complaints procedure. Due to the number of service complaints and FoI requests Mr X made, and his complaints about individual officers, the Council carried out an internal review.
70. Mr X questioned the competence of Council staff and accused them of taking no action over his nuisance reports. The evidence I have seen shows the Council did look into Mr X’s nuisance reports. It also responded to his complaints. Responses were not always as quick as Mr X expected, and he was not happy with the decisions made, but I do not find the Council at fault.
71. Due to the nature of Mr X’s communication, the Council decided to treat him as a vexatious complainant. The Council warned Mr X about this in its internal review response. Mr X continued to contact the Council in the same manner. It then met to discuss Mr X’s contact and assessed his behaviour against its criteria for vexatious contact. The Council followed its policy and was entitled to arrive at the decision it made.

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Final decision

72. I have completed my investigation. I have not found the Council at fault in the way it looked into Mr X’s environmental health reports or the way it responded to his complaints.

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Parts of the complaint that I did not investigate

73. I have not investigated whether Council officers bullied, harassed or intimidated Mr X. Mr X contacted the police about this, and they decided no action was required. I have also not investigated Mr X’s complaint about defamation. Mr X has a legal remedy for this.
74. Mr X did not ask me to investigate the Council’s response to his FoI requests. Mr X can complain to the Information Commissioners Office about this and I understand he has done so.

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Investigator's decision on behalf of the Ombudsman