The Ombudsman's final decision
Summary: Mr X complained about the way the Council dealt with his report of noise nuisance at a neighbouring commercial building. The Council was not at fault.
The complaint
Mr X complained about how the Council dealt with his report of noise nuisance at a neighbouring commercial property. Mr X said the Council’s noise recording equipment did not record properly and Council staff were unprofessional. He says the noise has affected his health and has suffered from lack of sleep.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, 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) Mr X has complained about events from 2017. He initially complained about noise from a neighbouring business in 2017 and 2018, which the Council responded to. Following this there was a change of use of the site, for which planning approval was granted.
There are no good reasons to exercise discretion to investigate this period and it is unlikely we could achieve a worthwhile outcome if we did so. Mr X made a further report of noise nuisance in September 2021 and this investigation considers the events from that date.
How I considered this complaint
I spoke to Mr X about his complaint and considered the information he provided.
I considered the Council's comments about the complaint and the supporting documents it provided.
I considered the Council's policies and relevant law and guidance.
Mr X and the Council had the opportunity to comment on the draft decision. We considered their comments before making a final decision.
What I found
Relevant law and guidance Statutory nuisance Councils must investigate complaints about noise that could be a statutory nuisance under the Environmental Protection Act 1990. The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
For a noise to count as a statutory nuisance it must do one of the following: unreasonably and substantially interfere with the use or enjoyment of a home or other premises; 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) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82. Information on private action is provided on the Council’s website.
Council’s noise policy The Council’s website sets out the Council procedure for reporting a commercial noise nuisance, it says: for the Council to action a noise complaint it must be sure it is a statutory noise nuisance; the complainant should contact the business about the noise or the Council will contact it on the complainants behalf; the Council will ask complainants to keep a diary of the noise for 2 weeks; the Council will try and visit and witness the noise. The Council will contact the business to let it know a complaint has been made against it. The Council will try and agree a compromise if the noise is unreasonable; and the Council may consider no involvement is needed but will offer advice and tell the complainant of its decision.
What happened In early September 2021 Mr X told the Council about noise at a neighbouring business. The Council contacted him about this within two days and explained to Mr X about its recording sheet process. It wrote to him to confirm it had opened a noise complaint case and sent him the recording forms. The Council also rang the business and told it that a noise complaint had been raised. It confirmed this in writing.
In mid-November 2021 Mr X returned the diary sheets to the Council. Six days later the Council rang the business to discuss the diary sheets filled in by Mr X.
In early December 2021 the Council emailed Mr X to ask him if the noise was still a problem and Mr X confirmed it was. He said other neighbours had also told him they could hear the noise. The Council suggested installing noise monitoring equipment, which Mr X agreed to.
The Council installed the equipment in Mr X’s property in mid-January 2022. Mr X told the Council twice the equipment had not recorded the noise on one occasion. The Council made one revisit to move the equipment to another room in Mr X’s property. The Council collected the noise equipment 9 days after it had been installed.
The Council sent Mr X a letter in late February 2022 with the results of the noise recording. The Council told Mr X it did not class the noise as a statutory nuisance and it closed the case. The letter said: ‘The source of the noise was audible on these records, but at a low level. The noise was audible, however this was noted to be more from the windows being open, as was evident from the recordings at 04:05 and later at 08:35. Whilst we appreciate you can hear a humming; at present the results of the noise monitoring do not indicate that the level of intrusion would meet the threshold of a statutory nuisance. Due to the above, I must inform you that this case has been closed. Whilst your individual case has been closed, please be reassured that we are working closely with industry in the area to continually improve environmental impact on residents’.
Mr X was unhappy with the outcome and complained to the Council in mid-March 2022. The Council undertook four site visits to look into the noise between mid-March 2022 and late April 2022 at different times of the day. On one of the site visits the Council officer noted the noise as audible but not intrusive. On another visit the Council officer went into the garden with Mr X where the Council officer said the noise was more audible, but it was not loud enough to prevent use of his garden. On the other two site visits the Council officer did not hear noise on the street outside the property.
In mid-April 2022 and in early May 2022 Mr X emailed the Council and said the noise was loud.
In late April 2022 the Council wrote to the business telling it of the noise findings.
In mid-May 2022 the Council wrote a letter to Mr X telling him it was closing the noise investigation.
Three days later Mr X made a formal complaint to the Council. He said he had been complaining to the Council about the noise for 5 years; the business did not initially have planning permission, but this was given at a later date; it was well documented on social media about the noise; he did not agree the noise was not a statutory nuisance; he would like independent consultants to assess his complaint; and he would like to enjoy his property in peace and quiet.
In late May 2022 the Council visited the commercial property. The Council said the noise was audible at a moderate level with wind gusts and the noise was lower and just detectable with no wind. The Council officer noted the pitch of noise was comparable to other locations.
In early June 2022 the Council responded to Mr X’s complaint. It said Mr X’s main concern was he did not agree the noise was not a statutory nuisance; the commercial property had retrospective planning permission granted; it was satisfied the decision took full consideration of Mr X’s concerns of the noise; it took account of diary sheets, Mr X’s observations, electronic evidence, several visits to the property including audit and inspection visits of the commercial building; the investigation decided the frequencies of noise recorded needed to be amplified to clearly hear the source; and officers have admitted there was a humming noise at times which caused Mr X some disturbance but at no time has the noise been identified as intrusive enough either inside or outside the property to amount to a legal definition of a statutory nuisance.
Mr X was not satisfied with the Council’s final response and complained to the Ombudsman.
Response to enquiries Mr X told me the Council’s noise recording equipment did not always work and officers had to move the equipment, which was unprofessional.
In response to my enquiries about this the Council said: when Mr X raised concerns about the noise recording equipment not working advice was sought from a council officer with experience of using the noise recording equipment and he confirmed if the lights were on the equipment was working; it could not say why the noise recording equipment stopped running on one occasion but noise data was captured and assessed on seven occasions for 38 minutes; when the data was downloaded the data files reviewed showed the noise were representative of the sound recorded by the Council and Mr X; the environmental health officer assessing the noise recording had over 20 years of experience of evaluating noise recordings and the officer was confident the system performed correctly and was representative of the noise recorded by Mr X; the noise recording equipment constantly logged the noise data and there was no change to the recording or data profile during the recording period; the noise recording equipment had been used in other locations since it was in Mr X’s property and no similar concerns had been reported; and the field calibration did not show drift and the recording equipment was working within manufacturer tolerances.
My findings
The Council provided documents to show how it considered Mr X’s report of a noise nuisance. It gathered diary sheets, installed noise monitoring equipment for 9 days in January 2022, carried out site visits and spoke to the business. In February 2022 and again in May 2022. An environmental health officer, exercising their professional judgement, decided the noise did not amount to a statutory nuisance.
The Council accepted the noise monitoring equipment did not record the noise on one occasion but was satisfied it had sufficient evidence to reach a proper view about the noise. It confirmed the equipment was calibrated correctly and was within manufacturers tolerances.
The Council has taken the steps we would expect, and I have not found fault with the way it reached its decision that the noise did not amount to a statutory nuisance. In the absence of fault in the decision-making process, I cannot comment on the decision reached.
Final decision
I have completed my investigation finding no fault by the Council.
Investigator's decision on behalf of the Ombudsman