The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council investigated a complaint about dust. We are unlikely to find fault.
The complaint
Mrs X complains the Council did not adequately investigate her concerns about dust coming from a nearby business. She is concerned the dust pollution will have a long-term impact on her health and vegetation. She wants the Council to conduct a more thorough investigation into the dust.
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)
How I considered this complaint
I considered information provided by Mrs X.
I considered the Ombudsman’s Assessment Code.
My assessment
Under the Environmental Protection Act 1990 councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’, including dust from 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 property and/or injure health or be likely to injure health. 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. 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.
Mrs X completed a diary sheet for a month, which demonstrated Mrs X had an ongoing concern about dust settling on her car, garden and outside furniture. It also demonstrated Mrs X was concerned about the levels of dust she may have been breathing in.
The Council considered Mrs X’s diary and conducted a site visit. The Council decided the dust did not amount to a statutory nuisance. Mrs X may not consider the Council’s investigation to be as forensic as she would hope, but we are unlikely to find fault with how the Council came to its decision.
The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether Mrs X disagrees with the decision the organisation made.
Final decision
We will not investigate Mrs X’s complaint because we are unlikely to find fault with how the Council came to its decision.
Investigator's decision on behalf of the Ombudsman