The Ombudsman's final decision
Summary: Ms X complains about the way the Council dealt with her complaints of nuisance caused by dust and odour from a nearby agricultural business.
We have found no evidence of fault in the way the Council considered these matters. So, we have completed our investigation.
The complaint
I have called the complainant Ms X. She complains there were failings in the way the Council responded to her complaints of dust and odour nuisance from a nearby agricultural business. Ms X says the issue has been ongoing for many years causing her distress and a detrimental impact onto her health and amenities. Ms X wants the Council to take action to reduce the amount of the business on the site and ensure the owner installs ventilation or filtration systems to reduce the nuisance.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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)
What I have and have not investigated I have investigated Ms X’s complaints of dust and odour nuisance from July 2022 onwards. Although Ms X says the matter has been ongoing for many years, the Council recorded Ms X’s first complaint in 2019. The complaint was investigated and closed as the site was found to be clean and well run with no evidence of odour and dust. Ms X made no further complaints about the site until July 2022. I have not investigated any complaints Ms X may have about the Council’s response to her concerns in 2019. This is because Ms X’s complaints about this time are late. It was open to Ms X to have raised any complaints about the Council’s response with us before now.
How I considered this complaint
I have read the documents submitted by Ms X and spoken to her about the complaint. I considered information from the Council and the supporting documents it provided.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include insect infestations from industrial, trade or business premises.
For the issue to count as a statutory nuisance, it must: unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or injure health or be likely to injure health.
There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, fit noise-monitoring equipment, undertake site visits or ask the complainant to complete diary sheets.
Once the evidence-gathering process is complete, the EHOs will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officers will use their professional judgement to decide whether a statutory nuisance exists.
Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
Section 82 of the Environmental Protection Act 1990 It is possible for a person aggrieved by a statutory nuisance to take their own private proceedings in the magistrate’s court under section 82 of the EPA.
The Council’s enforcement procedure for dust or ordure The Council does not have a specific policy for dealing with complaints of dust and odour. But follows the general principles set out in its policy for investigating complaints of noise nuisance to do so fairly, impartially, consistently, and according to government laws and regulations. The policy says the Council will approach enforcement in a graduated way and use an informal approach at first before more formal action if required.
The policy sets out the information it requires, contacting the source, how it will gather evidence including using diary sheets and monitoring, and assessing the information. The policy sets out the Council’s response times to complaints made.
What happened in this case What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
Ms X lives near to an agricultural business. The business has expanded over the last few years with the owner gaining planning permission for new buildings on the site. The Council granted planning permission for the most recent building in 2021.
Ms X complained to the Council in July 2022 about dust and odour from the business site. An Environmental Health (EH) officer called Ms X to discuss the complaint on three occasions without success and left voicemail messages. Ms X did not respond, and the Council closed the case. Ms X contacted the Council again in September 2022 about dust and odour from the site. Ms X said she had responded to the EH contact in July 2022 but received no response.
The EH officer visited Ms X to discuss her concerns in more detail in October 2022 and see the site. Ms X’s main concern centred on a building door being left open allowing dust to blow towards Ms X’s property. And whether the owner needed an Environment Agency permit to operate. The EH officer said they would work with the business owner to address any nuisance and check with the Environment Agency about the need for a permit.
The Council accepted the EH officer had not responded to Ms X’s emails and calls according to its timescales after July 2022 and apologised. The EH officer contacted Ms X during November 2022 to advise they would be monitoring the site during the part of its business phase causing Ms X to raise issues. This period ran from April to September each year.
Ms X complained to the Council about the site and planning application and why the Environmental Health service had not raised any objections to the proposed expansion of the business. The Council responded to Ms X. It explained the planning history of the site and planning applications made, there had been limited complaints about its use and these were not substantiated. The Council did not receive objections to the recent application. So, it was satisfied Environmental Health’s response to have no objections was the correct one to make.
The Council confirmed it was dealing with Ms X’s current complaint about dust and odour. An EH officer was to visit the site to discuss the issues raised with the owner including the ventilation of the buildings. The Council said it could not insist on any changes or works to the buildings unless it had evidence of a statutory nuisance. The Council said it would need to establish a nuisance during the next cycle of the business from April to September 2023. Although the owner may have a defence against any nuisance by showing they had taken best practical means to mitigate the issue.
The EH officer visited the site in January 2023 with an Environment Agency officer to view the processes onsite and whether it needed a permit to operate. The outcome was the business did not need a permit, but the Environment Agency would consider this further. The business owner advised they would comply with any mitigation measures the Council considered necessary.
The EH officer kept in contact with Ms X in January 2023 and dealt with her complaint about the business owner burning waste on the site in March 2023. This was resolved and the EH officer carried out 11 site visits between May to August 2023 to assess Ms X’s complaints of dust and odour from the site. During this time the EH officer contacted Ms X who reported issues with dust and odour and sent videos to support her concerns. The officer also met with the owner on site.
In August 2023 the Council advised Ms X the EH officer had found no evidence of a statutory nuisance on the site. The officer found occasionally some dust on the building roofs and the owner agreed to install some ventilation as a mitigation measure. The EH officer reported some foul odour on one occasion, but this had been caused by an issue with outside drains in wet weather. The owner agreed to improve the drainage to prevent flooding.
The Council said the EH officer and Environment Agency would continue to visit the site for checks. And ensure the mitigation measures had been put in place for the next business cycle (April to September) in 2024. The Council said as it had not found a statutory nuisance and due to the owner’s willingness and cooperation to put in mitigation measures it did not intend to take more action now.
Ms X raised concerns about the monitoring carried out by the EH officer saying they did not visit her property to assess the concerns from there. And the officer failed to take account of the evidence she submitted including the videos. The Council advised the officer walked around the boundary of the site when assessing it. This was to ensure they made an assessment downwind of the site so there was no need to visit Ms X’s property to assess for nuisance.
The Council confirmed it considered all the information Ms X provided including photographs and videos. But Ms X did not always provide enough details such as the date and time of the evidence so officers could plan visits and follow ups.
My assessment
The Council accepted the EH officer did not respond to Ms X’s contact after it closed the case in July 2022 according to its policy and timescales. It apologised, upheld this part of Ms X’s complaint, and arranged for the EH officer to contact Ms X in October 2022.
The Council provided documents to show from October 2022 it has responded to and investigated Ms X’s complaints of nuisance according to its guidance and procedures. The officer visited Ms X’s home and the business to consider the concerns she raised. The officer then carried out monitoring during the period between April and September 2023 when it was considered the issues of dust and odour arose. The EH officer did not consider there was evidence of a statutory nuisance.
Ms X disagrees with the Council’s decision there was no evidence of a statutory nuisance, but the decision is a matter of the officers’ professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
This is because the officer considered the information and evidence provided by Ms X and visited the business to investigate and monitor the alleged nuisance. This is according to the Council’s general guidance and the requirements of the EPA to investigate. The officer considered the evidence from site visits and was satisfied there was no statutory nuisance. This is a decision the Council is entitled to make. There is no evidence of fault in the way the Council investigated Ms X’s complaints of nuisance from October 2022.
The Council accepts a delay in responding to Ms X’s contact after it closed the case in July 2022. But I do not consider it has caused a significant injustice to warrant a finding of fault. This is because the documents show the Council responded to Ms X’s earlier contact but received no reply from her. In addition, the Council established the business use appeared to affect Ms X mainly between April and September each year so it would not have started monitoring the site until the start of the business cycle in April 2023 anyway. So, the lack of response did not delay the start of the monitoring period.
The Council has gained the agreement of the business owner to install mitigation measures at the site including ventilation which was an outcome Ms X was seeking. The Council will continue to monitor the site to ensure the measures are installed. It is open to Ms X to consider taking her own private proceedings in the magistrate’s court under section 82 of the EPA if she remains concerned about the alleged dust and odour nuisance from the site.
Final decision
I have completed my investigation. I have found no evidence of fault in the way the Council investigated Ms X’s concerns about dust and odour from a nearby agricultural business.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman