Summary: Mrs X complained the Council failed to address dust nuisance from a construction site near her home. We found the Council failed to properly record or explain its findings when it closed its nuisance investigation, and failed to record evidence of dust suppression. This caused Mrs X frustration. The Council also failed to follow its nuisance investigation procedure on site visits, but this did not cause significant injustice. The Council was entitled to reach the view that no statutory nuisance exists.

The complaint

1. Mrs X complained the Council failed to address dust nuisance from a construction site near her home.
2. Dust built up on Mrs X’s windows, which she had to keep closed, and she cannot enjoy her garden.
3. Mrs X said the site is not complying with dust suppression measures put in place during the planning process and the Council failed to enforce this. The Council only visited the site once and has not followed up on improvements the site said it would make.
4. Mrs X also complained about delay receiving a final response to her complaint.

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What I have investigated

5. I investigated the Council’s dust nuisance investigation by its Environmental Health service. I have not investigated the actions of the Council’s planning service regarding any planning conditions.

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The Ombudsman’s role and powers

6. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)

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How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Mrs X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory nuisance

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
12. Activities a council might decide are a statutory nuisance include:
• Noise from premises or vehicles, equipment or machinery in the street.
• Smoke from premises.
• Smells and fumes from industry, trade or business premises.
• Artificial light from premises.
• Insect infestations from industrial, trade or business premises.
• Accumulation of deposits on premises.
13. 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 property; and/or
• Injure health or be likely to injure health.
14. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets or make site visits.
15. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
16. The law says that a potential nuisance must be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the complainant because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
17. 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.

The Council’s nuisance investigation procedure

18. If required, the Council will ask complainants to complete diary sheets recording the nuisance. The Council will then assess what further action it should take. This could include:
• The investigating officer trying to witness the event, making all reasonable attempts to see the nuisance.
• More diary sheets.
• Installing dust gauges.
19. The Council will make efforts to witness the dust where possible, including visits at the time the dust occurs or is likely to occur. If an officer makes three attempts to witness the dust and finds no nuisance, they should consider closing the case.

What happened

20. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
21. Mrs X contacted the Council’s environmental health service in August 2023, reporting dust nuisance from a nearby construction site. She sent videos of the dust and said the site owner allowed its contractors to work without following guidelines. She said her home was covered in brown gritty dust.
22. The Council’s environmental health service asked Mrs X to complete diary sheets.
23. Mrs X returned her completed diary sheets in September 2023. She recorded ten instances of dust over a 21-day period. Most occurrences lasted around half an hour, with one lasting most of the day. The dust forced Mrs X to close her windows and stopped her from enjoying the use of her garden. Mrs X said the site was failing to use water suppression to stop the dust when construction machinery or vehicles were in use.
24. The Council’s environmental health service contacted the site owner, and they provided dust monitoring records from different areas of the site. The site owner also said they would continue to dampen down during hot and dry conditions.
25. The Council’s environmental health service then told Mrs X it was closing the investigation. The case officer said they assessed Mrs X’s diary sheets, visited the site, and spoke with the site manager. They were satisfied the site was carrying out best practicable means to reduce dust, so the Council’s environmental health service would not take further action. The case officer said they did not witness plumes of dust on site when machinery was moving around, and it is not unreasonable for dust particles to enter the air when construction takes place, especially in dry weather.
26. Mrs X disagreed the site carried out best practicable means to reduce dust. She said she provided the Council’s environmental health service with photographs and videos showing this was not the case for several months. When she asked the site manager to water down, they told her this did not work as the soil dries out again. Mrs X understood there will be some dust from a construction site, but the site should be adhering to dust suppression measures set out in the Construction Management Plan (CMP). Mrs X was glad the site ordered more perforated hoses to better dampen down the site, as it is clear current measures are not enough.
27. The case officer recognised there was dust at times, but said it was created by necessary construction works. They considered the time, duration and frequency of incidents, along with supporting evidence. They said the threshold for the Council to take action is where the nuisance causes unreasonable interference and arises from unreasonable use of premises. They said Mrs X’s evidence may satisfy unreasonable interference, but the nature of behaviour does not suggest unreasonable use of a construction site. The case officer said they spoke to the site manager about lack of water suppression, and they will address it.
28. Mrs X said this was the point she tried to highlight. The site is supposed to use water suppression as per the CMP, but are not doing so. She asked who she should report it to if the site continues not to use water suppression and she continues to have the nuisance problem.
29. The case officer said the Council’s environmental health service must prioritise complaints based on public health need and does not have capacity to continue liaising with Mrs X about dust. They referred to Mrs X’s right to take legal action under section 82 of the EPA.
30. Mrs X continued to report dust and lack of water suppression on site. The Council’s environmental health service said it would only consider further evidence if there were a substantive change. It directed Mrs X to its complaints procedure.
31. Mrs X again reported a lack of dust suppression on site in October 2023. The Council’s environmental health service said it passed Mrs X’s enquiry to the Council’s planning team to enforce the CMP.
32. Mrs X complained. She pointed out that if the site was using best practices to reduce the dust, then her windows would not be covered in grit, and she would not have to keep them closed. She said she had weeks of photographic and video evidence of the site not using water suppression. She also said the Council’s environmental health service only visited the site once, which is not enough to make a decision. She hoped the Council would return to check the site was using water suppression, as that week she sent more evidence of dust because site workers were not using water suppression.
33. In the Council’s stage one complaint response it said its environmental health service took account of how often the issue occurs, the time it occurs, how long it goes on for, and any impact on the complainant. The dust Mrs X recorded on her diary sheets were of short duration and not happening daily. There were multiple days between instances. Her videos and photographs show dust, but blowing away from her home and not causing a material interference with the use and enjoyment of her home. The Council said its environmental health service had been unable to substantiate a statutory nuisance. It also said the CMP is designed to minimise, not eradicate, dust.
34. Mrs X remained dissatisfied and asked the Council to consider her complaint at stage two.
35. The Council sent its stage two response in January 2024 and apologised for its delay. It said not all details were uploaded to its system.
36. The Council said the site uses handheld dust monitors, taking readings throughout the day. Its environmental health service visited the site and found adequate dust protection measures (dampening down) and no statutory nuisance. The Council was confident the site follows all statutory measures and regulations and it worked with the site owner to keep disruption to a minimum. It gave Mrs X details of the site’s liaison officer for any ongoing concerns.

My investigation

37. Mrs X told me the site is meant to do basic watering down to prevent dust, but they do not do this much. The site owner told Mrs X they were ordering perforated hoses, but this never materialised.
38. Mrs X accepts there will be some dust, but wants the site to comply with the CMP in terms of dust suppression. Mrs X feels the Council did not follow up or check on what she reported.
39. The Council told me there have been a small number of occasions of isolated dust plumes after prolonged hot, dry weather in 2023, despite use of dust suppression on site. It said the site owner has a policy for dealing with dust, contained in the CMP, and have operated in accordance with this. It also said the site is surrounded by a six foot hoarding, so the fact Mrs X did not witness dust suppression does not mean it was not taking place.
40. The Council said there was a recent, unannounced, Health and Safety Executive inspection and audit focusing on dust. Their official report is still awaited but no breaches have been highlighted so far.
41. The Council considers the site always operates best practice and within permitted limits.
42. The Council said it, and the site owner, have paid for window cleaning for homes overlooking the site. This will continue for the duration of the work.
43. The Council’s planning service said the details on dust suppression in the CMP were not included at its request and are not a condition of the planning permission. It therefore cannot enforce against it.
44. The site owner told the Council they tried perforates hoses, but they were ineffective. They decided to stick with manual and vehicle sweeping and watering down when necessary.

Analysis

45. Decisions on statutory nuisance are down to the professional judgement of qualified officers. It is not my role to decide whether a statutory nuisance exists. I can only look at the investigation and decision-making process.
46. The Council’s stage one complaint response explains why its environmental health service does not consider a statutory nuisance was present. This was based on the relatively infrequent and short duration of the dust incidents Mrs X recorded. It also said it did not consider the impact of the dust was enough to materially interfere with the enjoyment of Mrs X’s home. This is of course subjective, and Mrs X disagrees. She complained she regularly had to close her windows in hot weather and cannot enjoy her garden. However, there is no defined threshold for a statutory nuisance. It is down to the professional judgement of the investigating officer.
47. The investigating officer in this case did say they considered the time, duration, and frequency of the dust in their decision letter to Mrs X. However, they did not give their view about the frequency and duration of the dust incidents. They also did not give any view about the impact on Mrs X, or whether they considered a statutory nuisance existed. I considered the case notes the Council provided, including about the officer’s site visit. Unfortunately, the notes do not confirm this information either. That is not good practice and is fault. We expect to see clear, contemporaneous records about an environmental health service’s investigation and findings, either in the case notes or in the decision letter. In this case, Mrs X had to complain in order to get a full and detailed explanation from the Council.
48. Mrs X also complained about the fact the Council’s environmental health service only carried out one site visit. I found this is not in keeping with the Council’s nuisance investigation procedure, which says its environmental health service will make three attempts to witness the nuisance before closing a complaint. This is fault.
49. The Council gave me a record of the case officer’s site visit, but I do not know what time of day the officer visited, how long they spent on site, or what activities they observed. I can appreciate Mrs X’s concerns, because a single visit represents only a small snapshot on one isolated day, and is not a meaningful picture of normal day to day working conditions.
50. However, the site visit is not the only evidence in this case. Mrs X sent photographs, videos, and diary sheets which enabled the case officer to form a view of the impact of the dust and how often it was an issue. The site owner also gave the Council’s environmental health service evidence of their regular dust monitoring.
51. I am therefore satisfied the Council’s environmental health service had enough information to reach a defensible decision about whether a statutory nuisance exists. And the lack of more site visits did not, on its own, cause Mrs X significant injustice.
52. I appreciate the Council’s stage two complaint response says it found adequate dust protection (dampening down) on site. However, this is not clear from the environmental health service’s records. I have not seen evidence the environmental health service checked or monitored water suppression at the relevant time.
53. I saw evidence the site owner wrote to the Council confirming they comply with the CMP, but this is not enough. There must be verifiable evidence. The site owner also gave the Council’s environmental health service evidence of random dust monitoring. While this shows dust at those times was below harmful levels, in terms of risk to health, it is not proof of dust suppression or watering down being in use.
54. I saw an email from the site owner during the nuisance investigation which states contractors were not always carrying out acceptable dust suppression. The owner sent a warning email to their contractor about this. In these circumstances, we would expect to see more site visits, or evidence of monitoring to ensure contractors were consistently using acceptable dust suppression before the Council’s environmental health service closed its investigation.
55. Mrs X was left frustrated by the Council’s conclusion that the site operates best practice on dust suppression when she considers this is regularly not the case. In response to my draft decision, the Council provided further photographic evidence of dust suppression and watering down in operation on site around the time of Mrs X’s complaint. Unfortunately, this was not recorded in the environmental health service’s nuisance investigation case file, which is fault. However, this evidence supports the environmental health service’s view that the site was using best practice to minimise dust. The Council’s environmental health service therefore does not need to carry out further monitoring unless there is new evidence of a statutory nuisance.
56. The Council has committed to cleaning residents’ windows once construction is complete. I consider this, and an apology from the environmental health service, to be a suitable remedy for the injustice.
57. The Council’s planning service said it cannot take enforcement action over the dust aspect of the CMP. That is not part of my investigation. If Mrs X disagrees, she can raise a new complaint with the planning service.
58. The Council acknowledged it delayed providing a stage two complaint response, which will have been frustrating for Mrs X. However, I consider the Council’s apology is sufficient remedy for the injustice.

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Agreed action

59. Within four weeks of my final decision, the Council will:
• Apologise to Mrs X for failing to explain its findings on statutory nuisance fully and clearly before closing its investigation.
• Remind environmental health officers to follow the Council’s nuisance investigation procedure on site visits. Also, remind them the importance of contemporaneous note taking, and of giving complainants full and clear reasons for their decisions.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I completed my investigation. I found the Council failed to properly record or explain its findings when it closed its nuisance investigation, and failed to record evidence of dust suppression. This caused Mrs X frustration. It also failed to follow its nuisance investigation procedure on site visits, but this did not cause significant injustice. I found the Council was entitled to reach the view that no statutory nuisance exists.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman