The Ombudsman's final decision
Summary: Mr D says the Council failed to correctly investigate his noise complaints. We have not found evidence of fault by the Council and have completed the investigation and not upheld the complaint.
The complaint
The complainant (whom I refer to as Mr D) says the Council failed to investigate noise nuisance reports in line with procedures and queries whether the software (noise app) used by the Council was working correctly.
The Ombudsman’s role and powers
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)
What I have and have not investigated I am looking at the noise issue from September 2022 to the end of 2023. I am not looking at any incidents that occurred outside of that timeframe.
How I considered this complaint
I have considered the information provided by Mr D. I asked the Council questions and examined its response including the case notes of the noise investigation.
I have seen all the case records for this matter which includes a large volume of third party data about Mr D’s neighbour. I cannot share that information but have taken into account all of the evidence I have received.
I shared my draft decision with both parties and considered their comments.
What I found
What happened On 12 April 2023 Mr D reported noise nuisance issues by his neighbour to the Council. The case was allocated to an Environmental Regulatory Service Officer (Officer). The Officer spoke to Mr or Mrs D and advised on how to use the Council’s noise app to gather evidence. Later that month the Officer spoke to Mrs D about using the noise app. On 3 May the Officer told Mr and Mrs D he had spoken to the neighbour and advised the Council was investigating a noise nuisance complaint. Mr and Mrs D submitted recordings of noise to the Council in May and on 9 May the Officer sent the neighbour a warning letter advising the Council was investigating the case, if the complaint was justified the resident should consider how to prevent the issue reoccurring. On 15 May the Officer told Mr D he had listened to the noise recordings; they were not enough to justify further formal enforcement action. He advised he had taken into account that soundproofing between the properties was not good and exacerbated the noise being heard. The noise in recent recordings appeared to be people in day to day living activities albeit at hours when other people would be sleeping. He said this was a factor in the decision along with the degree of the noise level. He did not have enough evidence to support a court case. Mr and Mrs D should continue to provide noise recordings. Mr D continued to correspond with the Officer about his neighbour and the noise issue. On 31 May he said the noise app did not seem to record the correct noise level. On 5 June the Officer said the recent recordings had picked up clear music, however it needed to be later at night or more frequent to be considered a statutory nuisance.
In June Mr and Mrs D continued to send noise recordings to the Council and report incidents. On 26 June the Officer told Mr D he had spoken to the neighbour about noise from one night which was “unacceptable”. He had taken account of the neighbour’s personal circumstances, work patterns and soundproofing at the properties. Taking all factors into account he would not be taking formal enforcement action. He said the neighbour had evidenced changes made to address the noise issues and this had to be taken into account by the Council. If further evidence came to light the Council would reconsider whether formal enforcement action should be taken. Mr D replied the same day stating soundproofing would not change the situation and why did his neighbour’s personal circumstances mean he was not being held accountable.
On 20 July Mr D reported a further incident to the Council. On 24 July the Officer replied that any evidence for a court action needed to stand up to scrutiny and be able to rebut the mitigation the opposing party might offer. On 9 August Mr D told the Officer he had sent evidence, but the noise app did not properly reflect the noise levels he had experienced. On 21 August Mr D sent another noise recording to the Council and reiterated he felt the noise app did not correctly rate the noise level. On 24 August the Officer told Mr D he would continue to consider the evidence and investigate. In September the Council noted the neighbour had moved and there were no further noise nuisance reports. The case was closed.
What should have happened When a resident reports noise nuisance to the Council the case is referred to the Environmental Health Team to consider. An Environmental Health Officer will consider the information provided and contact the complainant to explain the investigation process including use of the noise app. The noise app allows complainants to record the noise nuisance and send that evidence to the Council. The Officer will notify the alleged perpetrator that a complaint has been received. The Officer must assess the evidence gathered including noise app recordings, they may carry out site visits but do not have to do so in every case.
When deciding if there is sufficient evidence of a statutory noise nuisance the Officer will take account of a wide range of factors including frequency, type of noise, and duration. They must also consider whether any formal enforcement action which would progress to the courts would likely be successful. The Officer will use their professional judgement in reaching a decision. If they gather enough evidence to prove there is a statutory noise nuisance the Council can issue an Abatement Notice. If they do not find evidence of a statutory noise nuisance the Officer should explain this to the complainant.
Was there fault by the Council Mr D says the Council should have taken enforcement action against his neighbour. Whilst I appreciate why he feels this way the evidence shows me there is no fault by the Council. The Officer adhered to the correct procedures when investigating the noise complaint. They gathered evidence, listened to the recordings provided by Mr and Mrs D and spoke to the neighbour. They also explained how they had considered the evidence and what factors had to be taken into account. I know Mr D queried why soundproofing and lifestyle factors were a factor in the Officer’s decision making. Those two points were relevant because the Officer had to consider whether the neighbour could show mitigation if the case progressed to formal enforcement and court action. 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.
Mr D also stated the noise app might be faulty. I have looked into this matter and the Council has confirmed that no errors were found with the initial version of the software that Mr D was using. The app was updated but this is standard practice for software rather than being a response to any user issues. I am unable to verify there was an issue with the noise app and so cannot uphold this part of the complaint.
Final decision
I have completed the investigation and not upheld the complaint.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman