General Nuisance

Nuisance Investigation Procedures (excluding noise nuisance)

The Council has a duty to provide a service to investigate complaints of nuisance. This service is usually performed by members of the Environmental Monitoring and/or Environmental Protection Teams, which form part of the Public Protection Division with some initial work performed by the Corporate Connect Call Centre.

Introduction

The Council has a duty to provide a service to investigate complaints of nuisance. This service is usually performed by members of the Environmental Monitoring and/or Environmental Protection Teams, which form part of the Public Protection Division with some initial work performed by the Corporate Connect Call Centre.

This document explains the procedures used to investigate nuisance complaints and the safeguards that the Council needs to employ.

As a relatively small authority, the Council does not have the resources available to provide a responsive out-of-hours service to deal with nuisance complaints.

Nuisance investigation procedure

General

The Council has a statutory duty to investigate complaints about the types of nuisance as defined and listed in Section 79 of the Environmental Protection Act 1990:that may be prejudicial to health or a nuisance

• any premises is such a state
• smoke emitted from a premises
• fumes or gases
• dust steam smell arising from an industrial, trade or business premises
• any accumulation
• any insects emanating from relevant industrial trade or business premises
• artificial light
• noise
• any other matter declared by legal enactment. this list does not include domestic odour.

However the type of investigation in a particular case will vary depending upon the circumstances of the complaint and on the potential severity of the issue.

Complaints may be received in a variety of ways - telephone calls, letters, e-mails, etc and will usually be handled initially by the Council’s Connect Contact Centre. Details of the person making the complaint are always treated confidentially, and because of the need to contact the complainant during the course of an investigation, anonymous complaints will not usually be acted upon. Similarly, complaints via a third party will not be acted upon until the person that is directly affected by the nuisance has been contacted to confirm the details of the complaint.

Despite our care with keeping personal details confidential, the person being complained of may be able to deduce/guess who has made the. Complainants should bear this in mind.

 Actions undertaken during the investigation of the complaint will be recorded on the appropriate computer log. Actions taken by the Call Centre will be logged on the Corporate computer complaint database, CRM. Actions undertaken by Public Protection, will be logged on their database, APP.

Information Sharing

Public Protection routinely shares information with the police, other directorates in the Council and other external agencies such as social landlords in accordance with our agreements with them under the Data Protection Act.

Investigation of Complaints

Initial Contact

 In general when a complaint is received Public Protection will contact the complainant and the person complained about to confirm the nature of the complaint, and advise on the procedures for responding to it.

For complaints other than noise, the investigating officer will, in consultation with the team leader, decide how best to make contact. This could be by telephone, visit, in writing or email.

Very often, this informal approach is sufficient to resolve matters and no further action is necessary by the Council.

When contacting the person making the complaint to discuss the issue, case notes will be made to assist with any future decision made in respect of the case. It is therefore necessary to make an assessment of the information gathered, taking into account the nature, frequency and persistence of any nuisance. This is particularly important in cases relating to bonfires and or other issues that do not occur all the time, i.e. are not continuous. This information is of great value to the investigating officer and may include such things as the type and severity of the problem, the number of incidents, time of day, impact upon the complainant and so on. These are all important pieces of ‘evidence’ which help to inform the investigation. Officers will assess the details and use their professional judgement and experience to decide whether further investigation is warranted or whether a statutory nuisance is likely to exist.

When considering statutory nuisance the following are key considerations.

• location
• time
• duration
• frequency

In some circumstances officers may also have regard to

• the local environment
• importance and value to the community of an activity
• the difficulty in avoiding the external effects of an activity

These considerations have been developed form previous cases and decisions made in the Courts. Where Officers are satisfied that further assessment of nuisance is necessary, they will write to the complainant confirming the name of the investigating officer and give an indication of the likely time scales for gathering evidence. Much of Statutory nuisance is based on guiding principles and case law, there being little or no monitoring equipment available to assist officers to make an assessment as to whether something is a statutory nuisance or not.

When making this assessment, officers cannot take into account any special sensitivities of a complainant such as ill health or a night worker trying to sleep during the day. Neither can we take action in respect of odours, such as cooking smells.

It is also not possible for officers to deal with nuisance in the street unless it involves noise from machinery such as a refrigeration chiller motor or generator we are also unable to deal with nuisance from traffic on the highway in any circumstances.

Where Officers do not believe that further investigation would be of benefit or that the problem is unlikely to amount to a statutory nuisance, the investigating officer will refer the case to his/her respective Team Leader with a recommendation that the case should be closed. Such a decision may be made based purely on the investigating officer’s opinion and his/her recommendation to the Team Leader. When a decision is made in respect of a case, officers will inform the complainant in writing giving the reasons for their decision and whether or not further action can be taken.

If a notice is to be served (see below) the letter to the complainant will set out what to do if he/she has reason to believe that the notice is not being complied with.

Service of a Notice If the evidence suggests that a statutory nuisance exists, and that formal action is considered to be appropriate, a statutory notice will be served.

The exact requirements of a notice will vary depending on the circumstances, but in general terms it will set out * what the nuisance is

• a schedule of works that need to be carried out or a sufficiently detailed description of the nuisance so that the recipient could reasonably be expected to decide for themselves what they should do to comply
• a timescale for compliance
• whether the notice will be suspended on appeal
• how to appeal A covering letter will also be sent with the notice, but if any separate advice is in respect of how to comply with the notice requirements is given, it will be sent under separate cover and without prejudice so that it does not form part of the notice.

Further Action

If a notice is not complied with, there are a number of enforcement options.

• Works in default of the notice. Any works carried out by the council will be recovered from the person on whom the notice is served and or
• Prosecution in the appropriate court for non-compliance
• In some instances there may be provision for a fixed penalty notice to be served.
• Seeking an injunction where none of the above options are available
• No enforcement action

If we decide that prosecution is the most appropriate course of action, or the subject of the complaint decides to appeal against a notice, complainants may be asked to provide formal witness statements and may even be required to appear in court. We would consult complainants before taking this course of action and would respect their decision if they feel that they cannot contribute in this way, even if this means that the case cannot be pursued or a notice withdrawn.

The complainant will be advised of the outcome of any action in writing, and what to do if the problem still persists.

We would also give statements where requested to other agencies such as Solihull Community Housing or social landlords where they may wish to take action to seek possession of a property on the grounds that the nuisance is a breach of a tenancy agreement.

In some rare circumstances, it may be decided that further action is not justified or practical even if a nuisance is shown to continue. We must have due regard to the Council’s own and national guidance on enforcement and prosecution, and there is a principle in law it does not follow that all offences will be prosecuted. If we decide not to pursue a case we will explain our reasons in writing to the complainant.

Taking Your Own Action

Complainants can take their own action for nuisance under Section 82 of the Environmental Protection Act 1990 or in common law. We would advise anyone contemplating doing this to take legal advice, starting with their local Citizens Advice Bureau

Complaints About Our Service

We deal with many hundreds of complaints about nuisances each year and very occasionally, even with the best will, things can go wrong and customers may feel we may not have kept them adequately informed or that we have made a mistake. In such cases the Council has procedures for investigating formal complaints about the service. If you wish to complain about the service that you have received you should contact Solihull MBC’s Corporate Complaints Manager, who can be contacted by telephone on 0121 704 8276, by email sjones@solihull.gov.uk or in writing: Council House, PO Box 18, Solihull, B91 9QS.