Summary: X and Y complained the Council failed to investigate their complaint about excessive noise from premises near their homes. We have found fault by the Council in failing to respond to X’s further noise complaint following the closure of the initial complaint, causing injustice. The Council has agreed to remedy this injustice by apologising and contacting X about the further complaint.

The complaint

1. The complainants, who I am calling X and Y, complain the Council failed to investigate their complaint about excessive noise from licensed premises near their respective homes.
2. X made their first complaint to the Council about the noise in September 2022. They told the Council in November 2022 the problems had not been resolved and the excessive noise was continuing. But the Council did not take any action to investigate further in response to this contact.
3. X and Y say the noise from the licensed premises is still excessive and causing a nuisance. They want the Council’s Neighbourhood Enforcement Team to work with the licensing team and conduct a proper investigation.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)

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How I considered this complaint

7. I spoke to X, made enquiries of the Council and read the information X and the Council provided about the complaint.
8. I invited X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Statutory nuisances

9. Councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. (Environmental Protection Act 1990 (EPA)
10. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells from industry, trade or business premises; and
• artificial light from premises.

11. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.

12. 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. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
13. 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.
14. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices

15. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
16. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
17. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

What happened

18. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

September 2022: X’s noise complaint

19. X complained to the Council’s Neighbourhood Enforcement Team about noise late at night from licensed premises near their home. They included a completed noise diary and said loud music from the premises continued until the early hours of the morning three or four times a week.
20. An officer wrote to X on 26 September 2022 advising:

• they had sent a warning letter to the premises about the noise complaint. X should allow two weeks for the warning to take effect;
• if the noise continued X should contact the officer again and the team would decide how to investigate the noise complaint; and
• if the team heard nothing further from X within the next four weeks they would assume the issue was resolved and close the case.

21. The officer reviewed the case on 24 October. As no further complaints had been received, they wrote to X confirming this, and that the case would now be closed.

November 2022: X’s further complaint

22. X made a further online complaint about the premises supported by other neighbours, including Y. X said the noise was continuing and the warning letter had not changed the premises’ behaviour.
23. The officer reviewed the further report. They recorded that the case had already been dealt with and sent a closure letter to X.

April 2023: X contacts the Council again

24. X asked the Council what was happening with their complaint as they had not heard anything further about the investigation.
25. The team replied saying they needed more information about the noise issues and how they related to the premises and not any other businesses in the area. They asked X to complete further noise diaries.

X’s complaint

26. X complained about the team’s reply. They said they had already completed noise diaries and were unhappy there had been no investigation.
27. In its final response in June 2023, the Council said:

• it considered X’s reports of noise in September 2022 and had written a warning letter to the premises;
• as it hadn’t received any further contact from X or other complaints about noise from the premises, it closed the case in October 2022;
• it had no record of any further complaints since it told X the case was closed; and
• it would need recent noise diaries from X to investigate further.

My decision – was there fault by the Council causing injustice?

28. I don’t propose finding fault with the Council’s response to X’s initial noise complaint in September 2022. It closed the case in October 2022 after sending a warning letter to the premises, having told X it would do so if it heard nothing further from them within the next four weeks.
29. But I consider it was fault by the Council not to contact X following their further complaint about noise from the premises in November 2022. In my view it was clear X was reporting that the noise from the premises was continuing to be a problem after the issue of the warning letter.
30. Because the Council failed to take any action in response to the November 2022 complaint, any further investigation of noise from the premises was delayed until X contacted the Council again in April 2023.
31. I consider the Council has remedied this by telling X what they need to do for the Council to continue the investigation. It has also told us it will arrange for an officer from the team to contact X for details of the noise issues.

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Agreed action

32. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to X for failing to respond to their further noise complaint in November 2022. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology; and
2. if it has not already done so, arrange for an officer from its Neigbourhood Enforcement Team to contact X about their noise complaint, and if the noise is still an issue, discuss how to progress this.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman