Decision : Upheld
Decision date : 09 Oct 2018
The Ombudsman's final decision:
Summary: Mr C complains the Council failed to investigate properly and take effective action in response to his reports of noise nuisance from his neighbour. Mr C says he suffered unacceptable levels of noise and disturbance for longer than necessary at a cost to his health and enjoyment of his property. The Ombudsman has found fault by the Council but is satisfied the actions it has taken of an apology and service improvements are enough to provide a suitable remedy.
- The complainant, whom I shall refer to as Mr C, complains the Council failed to investigate properly and take effective action in response to his reports of noise and other nuisance from his neighbour. Mr C says because of the Council's fault he has suffered unacceptable levels of noise and disturbance for longer than necessary at a substantial cost to his health and enjoyment of his property.
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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
- 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)
How I considered this complaint
- I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third-party information. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.
What I found
- The Environmental Protection Act 1990 provides that Local Authorities must take such steps as are reasonably practicable to investigate where a complaint of a statutory nuisance is made.
- For a noise to count as a 'statutory nuisance' it must:
- unreasonably and substantially interfere with the use or enjoyment of a home or other premises
- injure health or be likely to injure health
- The statutory nuisance must be witnessed by an Environmental Health Officer and they will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has occurred. If an officer decides 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.
- Those served with an abatement notice can appeal to a Magistrates Court. In certain cases, people who have used the best practicable means to stop or reduce the noise nuisance may be able to use this as grounds for appeal or a defence if prosecuted. Best practicable means involves having regard to local conditions and circumstances, the current state of technological knowledge and financial implications.
- It is open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.
- On receiving a report of noise nuisance the Council’s procedure is to send a letter to the alleged source of the noise to explain a report has been received and asking them to review their activities. If the matter is not resolved the Council will send a second letter to the alleged source to say it is monitoring the situation. The Council will send diary sheets for the person reporting the noise to complete over a period of two to four weeks. If the diary sheets suggest a statutory nuisance may exist the Council will investigate further through noise monitoring equipment and/or officer monitoring visits as appropriate.
- Mr C reported loud music from his neighbour’s property to the Council towards the end of May 2017. When the Council contacted Mr C he advised he did not want to pursue further action at that time. Mr C contacted the Council again during June and July but did not want the Council to contact his neighbour. The Council provided information to Mr C about the relevant legislation for him to take his own action.
- Mr C contacted the Council again in August about loud music from his neighbour’s property and asked the Council to contact his neighbour. The Council wrote to Mr C’s neighbour in line with its procedure.
- Mr C contacted the Council towards the end of August about the early start time of building work at his neighbour’s property and in early September about low level music. The Council provided advice to Mr C and confirmed the music was unlikely to constitute a statutory nuisance.
- Mr C contacted the Council in September about delivery and access issues being caused by his neighbour but explained he was going to be away for two weeks. The Council visited the site and contacted the developer about planning control issues. The Council also advised Mr C of what were generally acceptable working hours.
- Mr C advised the Council in October that he intended to take his own legal action against his neighbour. The Council explained it could send a second letter to his neighbour if he continued to experience noise nuisance and Mr C would need to complete diary sheets. However, Mr C asked the Council not to contact his neighbour and wanted to consider whether to complete diary sheets.
- Mr C contacted the Council in November about instances of noise from building works. Mr C was asked to complete diary sheets. Mr C provided the diary sheets to the Council at the end of November which suggested the noise was from DIY rather than commercial construction. Mr C also reported noise from loud music at the end of November. With Mr C’s agreement, the Council sent a second letter to his neighbour. The Council also sent further diary sheets to Mr C. The Council advised Mr C to include both the noise from DIY and loud music on the diary sheets.
- Mr C contacted the Council in early January 2018 to say there had been no unacceptable noise for the previous four weeks for him to record on his diary sheets.
- Mr C subsequently reported loud music from his neighbour’s property and asked for an extended period to complete his diary sheets. Mr C returned diary sheets to the Council in early and mid-February. The Council reviewed the diary sheets and wrote to Mr C in the third week of February to say it could not establish a statutory nuisance from the instances of noise he had recorded. The Council also noted the intermittent nature of the noise meant the use of noise monitoring equipment would not be appropriate. The Council asked Mr C to continue completing diary sheets for the next few weeks so it could further assess any new evidence.
- Mr C provided further diary sheets to the Council in early May. The Council reviewed Mr C’s diary sheets for the period between February and May. The Council wrote to Mr C in mid-May to say it could not establish a statutory nuisance from the instances of noise he had recorded on the additional diary sheets. Mr C confirmed the situation was better but wanted the Council to keep the case open. The Council explained it would not do so once it had decided the noise was not a statutory nuisance.
- The Council accepted during its consideration of a formal complaint from Mr C that it could have considered sooner the powers available to it under the Control of Pollution Act 1974 in relation to the building work. This legislation would not have applied to the loud music. The Council visited the site in May and advised the developer of the relevant legislation and the possibility of action if further reports were received. The Council says it has not received any further reports of noise nuisance from either DIY or loud music from Mr C since this visit.
- The chronology and documents provided by the Council show there were periods when Mr C asked it not to act and periods where he advised there had been no unacceptable noise. The Council investigated Mr C’s reports in line with its procedure and decided there was not enough evidence to establish a statutory nuisance. I have seen no evidence of undue delay or other fault by the Council here.
- However, the Council accepts it could have considered using the powers available under the Control of Pollution Act 1974 earlier on receiving Mr C’s diary sheets highlighting out of hours building works at the end of November 2017. The Council further accepts, subject to any appeal by Mr C’s neighbour, such action may have reduced the instances of DIY noise at unreasonable hours (although it would not have affected the loud music reports).
- The Council provided an apology to Mr C and explained it would review its enforcement procedure including the use of the Control of Pollution Act 1974 in appropriate cases. The Council has confirmed it is currently consulting internally about its enforcement procedure and discussing ways to improve collaboration between teams.
- Given the outcome of the Council’s assessment of whether a statutory nuisance existed and the intermittent nature of the noise experienced by Mr C I do not consider the Ombudsman should seek a further remedy to the actions already agreed by the Council.
I have completed my investigation. There was fault in the way the Council responded to Mr C’s reports about noise. Although Mr C does not agree with my decision, I am satisfied the actions the Council has already taken of an apology and service improvements are enough to remedy his injustice.
Investigator's decision on behalf of the Ombudsman