14. The law says a person needs to seek an MP referral of their complaint to us within a year of becoming aware of the problem. We cannot investigate complaints brought to us after one year, unless we consider there is a good reason to do so. We have discussed this with Mr X to understand the reasons why he could not do so. We have also considered the time EA took to respond to his concerns.
15. We recognise that often a person will not be able to complain to us within a year of events happening as complaint procedures can sometimes take over a year to be exhausted. To be able to justify there was good reason why a complaint is made to us outside the time limit we need to establish that this happened for reasons outside the persons control and there were no avoidable delays on their part.
16. For example, if a person had to wait for a response for some time, these waits take up a significant portion of the time prior to us receiving a complaint, and they had made reasonable attempts to chase up periodically, we could make allowances for this. If there are significant gaps unaccounted for where they could have acted to progress matters but did not, such as after getting a response, we cannot justify making allowances.
17. We asked Mr X if he could explain any long gaps between the events in question and him approaching the Ombudsman. He explained that in many cases he thought EA was going to take enforcement action following his complaint, that this would take some time, and he needed to be patient and wait to see the outcome. He explained that he only then escalated after becoming frustrated at the lack of action. He also said he did not want to risk of breakdown in relationship with EA by escalating too soon and had explored whether he could take legal action (either against EA or the site operators) at one point too.
18. We have taken this into consideration and looked at what happened prior to him seeking a referral to the Ombudsman from his MP:
19. Mr X’s original complaint was made in 19 June 2021 after he because frustrated at a lack of action from EA in response to his reports of excessive noise and land pollution. We see that he was aware of the issues for some time, possibly from as early as 2019 when he moved in, but we consider it reasonable that he did not make a complaint to EA until 2021 as this is when his dissatisfaction with EA’s response to his reports tipped into needing to complain.
20. The final response for that complaint was issued on 6 July 2021 which signposted him to us. An overview of the responses indicates that EA agreed to place the site under more scrutiny but eventually decided it did not agree it was operating beyond it’s permitted activities as an automobile scrapping and recycling business.
21. Mr X responded to EA that day expressing his dissatisfaction and intention to bring the complaint to the Ombudsman. He had already contacted us several days earlier for advice on the phone and been told by us to await a final response before seeking an MP referral. He did not seek an MP referral until May 2024, which is just under 3 years after his original need to complaint arose. We are unable to see any reason this complaint was not brought to us by Mr X at that time, and so there are no grounds for setting aside the time limit.
22. Mr X again complained to EA on 14 February 2023. His complaint centred on the continued noise pollution but did not mention the land pollution raised in the prior complaint. In the interim period the site had applied for, and been granted (by EA’s National Permitting Service), a significant increase in the volume of waste it could process. It’s range of activities remained the same, but this meant the site was increasingly busy (and noisy). Mr X remained unhappy that the level of noise permitted was far in excess of that produced by the prior operator.
23. EA’s response outlined how several serious breaches of the permit identified in 2022, and how mitigating actions had been set out for the site to bring it in line with its permit. Mr X waited 8 months before escalating the complaint to EA’s second tier for a final response. This was provided on 6 December 2023 and signposted Mr X to us if he remained unhappy. He wrote to EA several times after this to reiterate his unhappiness.
24. We note EA responses reiterate its stance on the issues and repeatedly signpost to us regarding its position on the lack of action against the site (and other organisations responsible for matters outside its remit).
25. The concerns raised in these exchanges are variations on the original concerns Mr X has had since moving into his home in 2019. Put simply there is a disjoint between the level of noise and activity Mr X finds acceptable, and that which EA says the site has permission to produce.
26. Aside from some regulation activity it has taken to keep the permitted noise to a minimum, EA’s position is that there is no breach of permit which would result in the level of noise and activity returning to a level comparable to 2017 levels. The site has held permissions allowing much more activity than that level, and this permit had been in place for some years before the change in ownership. Also, the current operator has since applied for, and obtained adjustments, which expand its permitted activities. EA explained that some other activities contributing to the noise would fall outside it’s remit and it signposted Mr X to the relevant authorities for these.
27. As such Mr X’s central issue is with the permits in place, not that EA agrees with him on there being breaches significant enough to warrant severe consequences, and it then failing to deliver. We must conclude that this state of affairs will have been apparent to Mr X for some time before May 2024. He had multiple opportunities to seek an MP referral to the Ombudsman much sooner and had been signposted to us multiple times.
28. We have some sympathy for his view that EA would need time to take action, and he felt he should wait or persevere with reporting and submitting new evidence to EA in the hope of a different outcome. However, we note EA consistently responds within a month and its responses make no assurances other than to keep the site under close monitoring.
29. We cannot therefore account for a majority of the delays being down to the length of the complaints process, or long periods waiting to see what happens. The messaging from EA has been consistent. The same themes raised at different times with EA do not constitute, in our view, new reasons to complain but variations on the original complaint.
30. We believe it would have been reasonable for Mr X to have contacted us for advice in December 2023, as he did in 2021. His knowledge of the complaints process and prior intention to approach us indicate he had the opportunity to seek an MP referral much sooner. There was no barrier preventing him exploring that option earlier than he did.
31. For these reasons we have decided we should not set aside the time limit on this occasion. This is in line with how we would apply the time limit on other cases. We were sorry to learn of Mr X’s problems and hope he can resolve his problems via the other avenues open to him.