Summary: Mr B complains the Council has not stopped continued nuisance from an industrial unit next to his house. He says regular noise and dust from the property interferes with his enjoyment of his property and is causing him stress. The Ombudsman does not find fault in how the Council investigated the complaint of statutory nuisance.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council has not acted to stop noise and dust at an industrial unit next to his house. He says noise from vehicles, machinery and beeping starts early in the morning and continues for much of the day. He says dust from the unit often covers his car and garden.

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What I have investigated

2. I have investigated Mr B’s complaint about how the Council considered statutory nuisance. I have not investigated Mr B’s concerns about planning consent or enforcement for the reasons outlined at the end of this statement.

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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 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. I reviewed the information provided by Mr B and his previous complaint to the Ombudsman. I discussed the complaint with Mr B on the telephone. I then made enquiries of the Council.

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What I found

6. In line with the Environmental Protection Act 1990, councils must look into complaints about noise or other things that could be a statutory nuisance.
7. For a noise to count as a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premise
• Injure health or be likely to injure health

Background

8. Mr B lives next to an industrial estate. The yard of one unit backs onto his garden. In 2016 new tenants occupied the site and applied for a change of use. The Council granted planning permission for light industrial use and for storage in the yard.
9. The tenant began to store materials, such as aggregates, in bunkers close to the boundary with Mr B’s property. Mr B complained to the Council about noise from vehicles moving the materials. He also complained about dust and grit from the materials blowing onto his property and car. Mr B said the tenant’s operations were not in line with its planning consent.
10. The Ombudsman previously looked into Mr B’s complaints about nuisance and planning enforcement. I will therefore not go into the history of the case again in detail. This investigation is limited to actions taken since our previous decision statement.
11. The Ombudsman recommended the Council visit the site again and decide whether a statutory nuisance existed. The Council visited the site in June 2018. The Council’s officer met with Mr B and the tenant. The tenant had built a fence at the edge of the boundary with Mr B’s property and fitted temporary nets over the bunkers.
12. The officer spoke to other neighbours who said the problems with noise and dust had reduced since introducing the fence and netting. The officer watched a lorry tipping aggregate into a bunker and did not see any dust. The tenant also said staff regularly hosed down the yard. The Council found there was not enough evidence the dust or noise amounted to a statutory nuisance.
13. In March 2019, Mr B made a new complaint to the Council. He said the sound of safety beepers and other vehicle noise had woken him at 07:30 and continued at periods throughout the day. He also said the dust and grit was still a problem. He said the temporary netting had blown off within a week of being fitted and was ineffective anyway. He provided videos and photographs of activities in the yard.
14. The Council agreed to look into the whether a statutory nuisance existed again, as Mr B’s complaint suggested an increase in the dust. It asked Mr B to complete diaries of when the nuisance occurred. Mr B sent records that detailed dust and noise over three weeks in March and April 2019.
15. The Council wrote to Mr B to say the times of activities he set out in the noise sheets were within the hours allowed by the business’ planning consent (07:00 to 18:30 Monday to Saturday). It said when a business was running within reasonable hours it was unlikely to constitute a statutory nuisance. The Council said it would visit and inspect the site again regarding the dust.
16. An officer visited the site twice in May 2019. The first occasion the officer visited in the morning. He watched vehicle movements and the loading of a lorry with aggregate. He noted the dust emissions were not excessive. He said the products were damp due to recent wet weather. The officer said the noise was what he would consider typical for a site of this nature.
17. The officer visited for a second time on an evening, after drier weather. The officer witnessed some noise from reversing alarms but considered this was in line with normal working activity. The officer did not see any dust being created.
18. The officer found he had not proved a statutory nuisance but would confirm controls with the tenant about reversing alarms, idling of vehicles, dampening down and loading activities.
19. In July 2019 Mr B made a further complaint. The Council did not investigate whether there was a statutory nuisance as it considered the issues were the same as Mr B had raised before. It said it would only investigate again if Mr B provided information to suggest the situation had changed or worsened.

Findings

20. It is not my role to decide whether a statutory nuisance exists. Only specialist officers from the Council can make that decision. I can only consider whether there is any fault in how the officers went about making their decision. For instance, if they did not consider relevant information this would be fault. If they did consider all the relevant information and reach an informed decision based on this, I cannot question the merits of their decision.
21. I do not find evidence of fault in the way the Council investigated or responded to Mr B’s complaints.
22. In June 2018, an officer visited the site again in line with our recommendation. She decided there was not enough evidence of statutory nuisance.
23. The notes show the officer spoke to neighbours, observed the site operations and considered actions the tenant took to reduce the impact of its activities. This came on the back of several visits and communication between the Council and the tenant, which is covered by our previous investigation. There is no evidence the officer did not properly consider relevant evidence or information. It is not my place to question the decision she reached in her professional judgement. I therefore do not find fault.
24. In the Council’s letter to Mr B it does not give any detail about why it did not find statutory nuisance. The Council should have set out clear reasons to Mr B for why it made its decision. However, the officer’s rationale is set out in the other documents provided. The Council had several conversations with Mr B in which it explained how it considered complaint. This does not therefore reach a threshold, in of itself, that I would find fault.
25. The Council visited two more times in May 2019, following Mr B’s further complaint. This time it produced a comprehensive report outlining how it considered the information Mr B provided and the findings of its officer’s visits. It sent a letter to Mr B clearly outlining its decision and rationale.
26. Again, I cannot see any evidence the Council did not consider the relevant factors when making its decision. The Council took account of Mr B’s logs and the timing of the activities. It noted the noise and dust, properly explained why it did not consider this amounted to statutory nuisance and outlined how it would follow up on issues such as dampening down the materials.
27. The decision that no statutory nuisance exists does not mean the business is not a nuisance to Mr B. The question of whether the noise and dust amounts to a statutory nuisance is subjective.
28. It is clear the operations are impacting on Mr B’s enjoyment of his property. However, the Council cannot make its decision based solely on the experience of the person who complains. It must also consider factors such as the location, timing, length and persistence of the alleged nuisance. The officer has considered all relevant factors and evidenced this in their investigation documents. It is therefore not my place to question the officer’s professional judgement.
29. I also do not find fault with the Council’s decision not to visit the site again following Mr B's complaint in July 2019. The Council has not ruled out investigating statutory nuisance in the future if the situation significantly changes. The concerns Mr B raises are a continuation of the issues he complained about previously, so I would not expect the Council to periodically look into the same concerns. However, it should keep in mind the need to investigate again if Mr B provides evidence the situation has significantly worsened or changed.
30. If Mr B remains concerned about nuisance from the property, another option would be to bring private action in the civil courts. The Council has written to Mr B with information on how he may do this, should he wish to pursue the matter privately.

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Final decision

31. The Council is not at fault in how it investigated this complaint of statutory nuisance.

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Parts of the complaint that I did not investigated

32. Mr B also complains about the business’ operations not complying with its planning consent. The Ombudsman has investigated this matter previously so I will not investigate again.

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Investigator's decision on behalf of the Ombudsman