Summary: Mr X complained about the way the Council handled his complaints about noise nuisance, vibrations and airborne substances from a business operating next to his property. There was no fault in the Council’s actions.

The complaint

1. Mr X complained the Council failed to deal appropriately with his complaints about:
• nuisance from excessive noise, vibration and airborne substances from a business which operates next to his property; and
• loss of privacy to his house and garden due to people at the business working at height.
2. Mr X says this has caused him distress and he is unable to use his garden.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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

5. I spoke to Mr X and considered the information he provided.
6. I made enquiries of the Council and considered the information it provided. This included copies of complaints correspondence, the Council’s policy on dealing with alleged statutory nuisance complaints, correspondence with the business owner and the County Council and copies of the notes made by the Environmental Health Officer after listening to the recordings made by Mr X.
7. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and statutory nuisance

The Environmental Protection Act 1990 and noise nuisance

8. The Environmental Protection Act 1990 states councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance”. The noise complained about might be loud music, barking dogs or noise from industrial, trade or business premises.
9. 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.
10. An environmental health officer will come to an independent judgement on whether there is a statutory nuisance. The process of determining what level of noise constitutes a nuisance can be quite subjective. Officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has actually occurred.
11. If an officer decides that a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
12. It is also open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.

What happened

13. This complaint concerns the actions of the District Council.
14. Mr X lives next door to land owned by the County Council. The County Council rents this land to a business.
15. In April 2017, Mr X made a complaint to the District Council about noise nuisance from the business.
16. The Council sent Mr X noise monitoring sheets which he completed for the period 16 April to 5 May. Mr X recorded noise incidents on nine of the 20 days in that period.
17. The Council’s Environmental Health Team (EHT) reviewed the diary entries and on 11 May wrote to the business to inform it of the complaint and to say it would be investigating the matter. The letter said the Council may use noise monitoring equipment as part of its investigation but did not advise when this would happen.
18. On 12 May, the EHT spoke to Mr X and told him they had written to the business. The EHT gave Mr X more diary sheets to record further incidents of noise.
19. On 24 May, the EHT discussed the noise complaint with the owner of the business.
20. Mr X submitted the diary sheets on 26 May. He recorded further incidents of noise. These were similar to the ones he had recorded earlier but also included noise from pressure washers.
21. The EHT installed noise monitoring equipment in Mr X’s property from 6 to 21 June.
22. Mr X did not make any recordings during the first week. He told the EHT that he made recordings during the second week, but because of an IT failure, the Council was unable to listen to these on its sound level monitor.
23. On 28 June the EHT carried out a site visit to the business to see the equipment in use. The EHT also tried to call on Mr X but he was not at home.
24. The EHT reinstalled the noise equipment at Mr X’s house from 7 to 21 July.
25. On 13 September, the Council wrote to the County Council and asked if the business site had any conditions attached which might have a bearing on the noise nuisance being reported. The County Council responded on the same day and suggested the Council speak to its own planning officers. It explained the type of tenancy it had with the business owner.
26. The EHT contacted its Planning Enforcement Team on 15 September to consider if the business had breached any of its conditions. The Planning Enforcement Team responded and said the business uses on the site were lawful and there had been no breach.
27. The EHT wrote to Mr X on 18 September. They said there were 58 sound recordings from the period 7 – 21 July and the letter detailed what those appeared to indicate, for example engines revving or a pressure washer in use. The EHT also gave a noise level recording in decibels for the activities.
28. The EHT wrote “although I could hear sounds from the neighbouring commercial premises, the noise levels, times of day and number of events were typical of a normal working yard and in my opinion not excessive”.
29. The EHT concluded that the recordings did not show there was a statutory noise nuisance as defined by the Environmental Protection Act. The EHT advised Mr X could take his own action if he wished under section 82 of the Act.
30. Mr X complained again on 16 February 2018. He said use of the site had worsened since his previous complaint. The EHT replied on 23 February and said it would write to the business owner. The EHT heard nothing further from Mr X.
31. Mr X contacted the EHT a third time on 5 April 2018 to say the noise from the site had increased again.
32. The EHT’s case notes record it spoke to Mr X on 10 April. It explained it would monitor the situation again but if it did not find a statutory nuisance, Mr X could take private action if he wished.
33. Mr X telephoned the Council on 30 April and 3 May to report the pressure washers had sprayed water into his garden that weekend.
34. The EHT emailed the business and said Mr X had made new complaints and reports of noise nuisance. The business agreed to mediation with Mr X. The EHT asked Mr X if he was willing to consider this and he said would give it some consideration.
35. Mr X submitted noise diaries for the period 9 to 25 May. Those recorded around 11 incidents of noise including noise from a generator and the revving of engines.
36. The EHT installed sound recording equipment in Mr X’s property for the period 28 June to 5 July. It wrote to Mr X on 17 July to say they had found no intrusive noise and there was no statutory noise nuisance evidenced on the recordings. The EHT advised again that Mr X could take private action against the business and asked if he had made a decision about mediation. Mr X declined the offer.
37. A representative of Mr X (Ms Z) complained to the Council on 31 October 2018 about the noise investigations it had carried out. The Council responded to Ms Z on 6 November and explained it had found no evidence of statutory nuisance.
38. On 7 November the EHT carried out an unannounced visit to the business and found no evidence of statutory noise nuisance.
39. Ms Z complained again on 15 November. Her complaints included the following:
• the Council failed to properly explain to Mr X how to use the monitoring equipment when it was installed for the first time and then it lost that data;
• the timing of the second installation of the monitoring equipment was inconvenient to Mr X;
• the Council prewarned the business when it would carry out the monitoring;
• Mr X’s house now had cracks in the internal walls caused by vibrations from the business; and
• the Council was uninterested in Mr X’s issues with noise which was a violation of his human rights and an invasion of his privacy.
40. An EHT manager responded to Ms Z on 19 November and asked her to contact them for a discussion about her complaints. The manager said that although they informed alleged perpetrators about noise complaints, they did not advise them when monitoring or a site visit would take place.
41. Ms Z contacted the Council on 12 December and said it had failed to address all the issues in her letter of 15 November.
42. The Council responded the same day and said:
• the site had the correct usage conditions to operate the current business;
• any issues of cracking on the walls was a private legal matter with the business owner;
• despite a number of investigations, the EHT had found no statutory noise nuisance;
• it was sorry the data from the first monitoring was not available.
43. Ms Z was unhappy with this response and asked the Council to escalate her complaints to stage 2 of the procedures. She remained unhappy with the Stage 2 response and complained to the Ombudsman.

My findings

44. The Environmental Protection Act 1990 states councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance”.
45. The evidence demonstrates the Council took appropriate action when Mr X made complaints about noise. It installed and analysed noise monitoring equipment on three occasions, issued and analysed diary sheets Mr X sent it, spoke to the business and checked with Planning Enforcement, who confirmed there was no breach of planning conditions. It also offered mediation which the business agreed to, but Mr X refused. There was no fault in the Council’s actions.
46. The Ombudsman provides a free service but must use public money carefully. I did not investigate Mr X’s complaints about nuisance from airborne substances, vibrations and people working at height. That was because it is unlikely I would find fault or my investigation would lead to a different outcome. This is because:
• lack of privacy because the business working at height – the EHT checked during its investigations with Planning Enforcement which stated there was no breach of planning conditions;
• vibrations from the machinery at the business – the Council confirmed on three occasions there was no statutory noise nuisance or obtrusive noise from the business;
• water from the pressure washers – there was no record from Mr X’s phone calls to the Council or his diary sheets that this was a regular occurrence.
47. And even if I did find fault, the injustice would not be significant enough to justify our involvement. This is because there is either no mention, or minimal mention, of these issues by Mr X during the period the Council was investigating his complaints of noise nuisance.
48. Furthermore, the Council offered to facilitate mediation between Mr X and the business. This was an appropriate action to take and the business agreed. Mr X refused, which is a decision he is entitled to take. However, if he remains unhappy about issues with the business, it is open for him to approach the Council and accept that offer.

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Final decision

49. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman