The Ombudsman's final decision
Summary: Miss B complained the Council failed to take effective action against a nearby car repair garage for emitting noise and strong paint fumes. Miss B said these affected her enjoyment of her home and she was worried about the impact on her and her family’s health. We have not found fault with the Council.
The complaint
Miss B complained the Council failed to take effective action against a nearby car repair garage for emitting noise and strong paint fumes. Miss B said these affected her enjoyment of her home and she was worried about the impact on her and her family’s health.
I considered this complaint from August 2021 to March 2022.
The Ombudsman’s role and powers
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) We cannot question whether an organisation’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) 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)
How I considered this complaint
I considered: Miss B’s complaint and the information she provided; documents supplied by the Council; Council’s policy; and, relevant legislation and guidelines.
Miss B and the Council commented on this draft decision. I considered their comments before making my final decision.
What I found
Legislation and guidance Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise, fumes and odour can be statutory nuisances.
To be considered a statutory nuisance, they must: unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or injure health or be likely to injure health.
Under the Act, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity and location of a nuisance when deciding if it is a statutory nuisance.
If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the recipient of the abatement notice contravenes or fails to comply with the notice, they may be guilty of a summary only offence.
A member of the public can also take private action against an alleged nuisance in the magistrates’ court under Section 82 of the Environmental Protection Act 1990. If the court is persuaded, they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
What happened This section includes key events in this case and does not cover everything that happened.
In August 2021, Miss B raised concerns with the Council and her MP about a nearby car repair garage emitting noise and odour.
The Council emailed Miss B and explained its investigation procedure and how it made decisions about statutory nuisances. It asked Miss B to complete diary sheets to record when the odour and noise was emitted, how long it occurred for and how it affected her.
Miss B told the Council the case was urgent. She was concerned the odour was from toxic fumes and a risk to her family’s health. The Council visited Miss B to carry out odour monitoring. The officer did not detect and odour or visible mist during the visit.
The Council reviewed Miss B’s completed diary sheets and decided the matter warranted further investigation. It wrote to the owner of the garage and gave him advice about minimising noise and odour disturbances. It asked Miss B to continue to complete diary sheets and to email when a disturbance was occurring, which Miss B did.
In September 2021, the Council visited the garage and Miss B to carry out odour monitoring. The officer detected odour and banging. The officer decided the odour was not strong enough to be a statutory nuisance and they needed to investigate further.
The Council wrote to the owner of the garage about the noise and odour. The Council updated Miss B. It advised Miss B it checked with planning enforcement and there were no restrictions around operating a paint spraying booth at the premises and given the amount of solvent used, the owner would not need an environmental permit. It said it would continue to investigate the odour from the paint spraying and noise from machinery. It asked her to contact it if odour was causing a nuisance inside her property and to consider completing further diary sheets, which she did.
The Council visited the garage and met with the owner. It gave him advice about his use of the spray booth.
The Council reviewed the case and decided a statutory nuisance for odour from the garage was likely to occur. The Council served the garage an abatement notice in September 2021. This required the owner to commission an assessment of the spray booth and exhaust stack and develop an action plan for any works needed. The Council gave the owner three months to undertake the works. It decided there was not enough evidence the noise was, or could be, a statutory nuisance. It updated Miss B.
Miss B questioned why the garage could continue to use the spray booth. The Council advised the abatement notice did not require the garage to stop using the spray booth and it had three months to comply with the notice. It told her the work the garage needed to undertake could require planning permission and this could take time. It said it would continue to monitor the garage’s compliance with the notice. Miss B told the Council she was unhappy the garage was allowed to continue to use the spray booth.
In October 2021, Miss B complained to the Council. The Council told her it would not consider her complaint using its complaint procedure until the three-month period it had given the garage owner to complete the actions in the abatement notice had passed. It signposted her to the Ombudsman. It confirmed it would continue to monitor the garage.
The garage owner got the spray booth assessed. In November 2021, he provided the Council with evidence the spray booth was installed correctly. He advised the exhaust stack needed to be extended. The Council told him he would need to apply for planning permission.
The garage made a pre-planning application to increase the height of the exhaust stack. The Council gave him feedback on his application. The garage owner gave the Council an action plan for the spray booth.
The Council updated Miss B in November 2021. It advised the garage owner had the spray booth serviced. It said the booth’s maintenance record confirmed it was installed correctly, was correctly sealed and in safe working order. It told Miss B the owner would undertake work to the exhaust stack, and the Council would ensure this was completed as soon as possible. It advised it would continue to monitor compliance with the notice.
Miss B raised a health and safety concern about the garage using the spray booth whist welding. The Council passed this concern onto the Health and Safety Executive. The Health and Safety Executive (HSE) is Britain’s national regulator for workplace health and safety. It prevents work-related death, injury and ill health. It gave Miss B contact information for the Health and Safety Executive.
The Council decided the garage had complained with the abatement notice. It commissioned an assessment of the spray booth and exhaust stack and developed an action plan for any works needed. The Council noted the garage had not been able to undertake the work within the three months of the abatement notice because he needed planning permission.
The Council wrote to Miss B in January 2022. It advised the garage owner complied with the abatement notice and was in discussions with its planning team about next steps.
The Council carried out a site visit to the garage in February 2022. It gave him advice about how to reduce the odour nuisance.
The Council wrote to Miss B. It summarised the action it had taken to address the odour nuisance. It told her the garage had not applied for planning permission. With regards Miss B’s noise complaint, it said as she had not submitted any noise app recordings or diary sheets for noise since September 2021, it could not progress this further.
Miss B told the Council she submitted diary sheets for noise and could not use the noise app because she had a lot of trees in her garden and the noise would be drowned out by these. The Council said, given this information, it was unlikely the noise would be considered a statutory nuisance. It told her she could report future noise disturbances for its consideration.
The Council visited the garage. It gave the owner advice about how to minimise odour and discussed the work he needed to undertake.
In March 2022, the Council visited Miss B to undertake odour monitoring. Miss B showed the Council where she could smell the odour when the spray booth was in operation. The Council did not detect any odour as the spray booth was not in use.
The Council arranged for the garage owner to use the spray booth while it monitored the odour.
Analysis The Council investigated the concern Miss B raised about noise and odour emitted by the car repair garage. It reviewed the evidence she provided alongside evidence it collected through site visits. It decided the odour emitted could result in a statutory nuisance and took enforcement action. It reviewed the actions the garage took in response to the abatement notice and decided the requirements of the notice had been met. It continued to work with the garage to minimise odour. The Council decided given the evidence it had of a noise nuisance it was unlikely to be a statutory nuisance.
The Council took account of all the relevant information and its decisions were based on the professional judgement of its officers. These were decisions the Council was entitled to make, and I found no fault in how they were made.
The Council responded appropriately to the concerns Miss B raised about the car repair garage. It worked with the garage to resolve concerns and took enforcement action when required. I found no fault with the Council’s investigation into Miss B’s concerns or the actions it took in response. The Council’s investigation is ongoing.
Final decision
I have completed my investigation and do not uphold Miss B’s complaint.
Investigator's decision on behalf of the Ombudsman