Summary: Mrs D complains the Council has failed in its duty of care to them. It has been unwilling to take action to stop noise from nearby businesses. The Ombudsman’s decision is the Council has taken reasonable steps to investigate Mrs D’s concerns, which is what it is required to do by the Environmental Protection Act. So we cannot question the merits of the Council’s view the noise its officers witnessed did not amount to a statutory nuisance.

The complaint

1. The complainant (whom I shall refer to as Mrs D) says they have been engulfed by so much noise from nearby businesses that it constitutes a violation of their human rights. The Council has failed in its duty of care to them, has not acted to prevent the noise and not carried out an adequate investigation of their complaints.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs D;
• made enquiries of the Council and considered its response;
• spoken to Mrs D;
• considered what the law says about statutory nuisance, including noise nuisance;
• sent my draft decision to Mrs D and the Council and considered their responses.

Back to top

What I found

Legal and administrative background

Environmental Protection Act and statutory nuisance

5. Under the Environmental Protection Act 1990, councils have a duty to take such steps as are ‘reasonably practicable’ to investigate complaints about noise or other ‘statutory nuisance’.
6. There is no set level at which noise becomes a statutory nuisance and is dependent of factors like its timing, frequency, the nature of the area and what could reasonably be expected there. The decision on whether noise amounts a nuisance is one of professional judgement for officers, based on objective evidence. A council officer cannot take action simply because a complainant says they are suffering from a nuisance.
7. A settled principle of the law of nuisance is that the test of whether something is a nuisance is to what an ‘ordinary reasonable’ person would find a nuisance. It is an objective test. In their investigations, councils cannot take account of the particular circumstances, illnesses, or sensitivities of an individual complainant.

What happened

8. Mrs D first contacted the Council in the summer of 2021 about noise from a business near to her home. She later complained about noise from other nearby businesses. She advised the noises meant she and her husband could not make use of their garden and was causing them great distress.
9. The Council’s environmental protection team opened a file. Over the following months that team kept in touch with Mrs D. It also:
• contacted some of the businesses to set out Mrs D’s concerns;
• asked Mrs D to keep diary sheets to record when the noises occurred;
• discussed installing some noise recording equipment in Mrs D’s home;
• contacted its planning team about an alleged breach of planning permission from one of the businesses. That team’s response was the business was not breaking any planning permission or condition;
• visited Mrs D’s home.
10. Mrs D advised the Council it would be better to install the noise recording equipment the following summer. The Council did this in June 2022. Its analysis of the evidence from the recordings did not find noise that in its officers’ view amounted to a statutory nuisance.
11. In September 2022 the Council closed its investigation. It wrote to Mrs D giving its reasons.
12. In early 2023 Mrs D made new complaints about one of the businesses. She later added complaints about others. Mrs D also complained about the Council’s handling of its investigation.
13. The Council considered the matter through its two-stage complaints procedure. It did not find fault and its letters explained why. But it did agree to carry out extra monitoring of noise from one of the businesses.
14. The Council’s officers carried out several one-hour visits to the area over a ten-day period. Its records show officers heard many of the noises Mrs D was complaining about. But their view was they had not witnessed any noise that amounted to a statutory nuisance within the meaning of the Environmental Protection Act.

Analysis

15. The Ombudsman cannot find fault where a council has taken appropriate steps to investigate noise nuisance. But we can investigate whether a council has taken reasonable steps to investigate potential statutory nuisances, which is what the Environmental Protection Act requires them to do. Having looked at the Council’s records, my decision is it has taken sufficient measures to investigate Mrs D’s complaints.
16. I understand that Mrs D has a very strong contrary view about the noise that has affected her family. However, the Council has taken appropriate action to respond to Mrs D’s reports. It carried out site investigations, considered the evidence she provided and informally spoke to some of the businesses. Its view was that, while there was noise, it did meet the legal thresholds to be considered a statutory nuisance. So, I cannot question the professional judgment of the Council’s officers, no matter how strongly Mrs D disagrees.

Back to top

Final decision

17. My decision is there was no fault by the Council. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman