Summary: Ms B complains the Council did not investigate her noise complaint properly. Ms B says the noise from her neighbours’ birds disturbs her sleep and reduces her and her parent’s enjoyment of their home. I have not found fault with the Council.

The complaint

1. Ms B says the noise from her neighbour’s birds disturbs her sleep and reduces her and her parents’ enjoyment of their home.
2. Ms B complains the Council did not investigate her noise complaint properly.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered:
• Ms B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
• Ms B and the Council’s comments on a draft decision.

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What I found

Legislation and statutory guidance

7. Councils must investigate complaints about matters which could be a nuisance covered by the Environmental Protection Act 1990. These include complaints about noise.
8. The Council must decide if the noise is a statutory nuisance.
9. For a noise to amount to an actionable statutory nuisance, two conditions must be met:
• It must cause significant interference to the normal occupation of premises by a person of average sensitivity.   
• It must be caused by some unreasonable or unusual act or omission or behaviour. 
10. In deciding if a noise amounts to a statutory nuisance, the Council must take account of factors such as the frequency, duration and characteristics of the noise. The assessment is not based on decibel limits.
11. If the Council considers the noise amounts to a statutory nuisance it must serve an abatement notice.
12. Members of the public can apply to the Magistrates Court for an abatement notice.

Council Procedure

13. I have set out below some key points from the policy.
14. When the Council receives a noise complaint it sends a letter to the alleged offender and the complainant.
15. The Council tells the alleged offender a complaint has been received.
16. The Council tells the complainant it has written to the alleged offender and invites the complainant to complete noise diary sheets. The Council advises the complainant it has closed the case but will reopen it on receiving completed noise diary sheets.
17. When diary sheets are returned, if they show a potential noise nuisance, the Council will contact the complainant to discuss the next stage of the investigation. The Council then writes to the complainant and the alleged offender to confirm the investigation arrangements / method of evidence gathering.
18. The Council says it gathers evidence using methods such as personal witnessing, monitoring by the out of hours service, or 3rd party professional witness (police). The Council states that noise monitoring must be undertaken in all cases unless the source of the noise is unknown. Complainants are required to make the Council aware when the noise is audible so they can attend and witness the noise.
19. If after 3 months the complainant alleges the noise is ongoing, but it has not been witnessed after two periods of out of hours service and / or two periods of noise monitoring offered, then a case conference with authorised officers or line managers must take place to decide if the investigation should continue.
20. Where it has not been possible, either by personal visit or noise monitoring, to prove a nuisance, a letter must be sent to the complainant advising them that no further action can be taken at this stage, together with details of how they may take their own legal action.

What happened

21. This chronology includes key events in this case and does not cover everything that happened.

Investigation 1

22. In August 2016, Ms B contacted the Council to complain about noise coming from her neighbour’s property. Ms B said the noise was from her neighbour’s birds.
23. The Council wrote to Ms B’s neighbour asking them to ensure that no further disturbance was caused and gave advice on reducing noise from cockerels.
24. The Council wrote to Ms B to ask her to complete noise diary sheets for the following two weeks if she experienced a noise disturbance and to return them to the Council. The Council advised if the noise stopped for a short period and then restarted, she should fill in the diary sheets and return them. The Council advised it would close her case and reopen it if she returned the noise diary sheets.
25. Ms B returned the noise diaries in September 2016. The Council spoke to Ms B to confirm the noise disturbance had improved. The Council said it would close the case, but it could be reopened if Ms B reported further noise disturbance.
26. Ms B made a complaint to the Council about the noise coming from her neighbour’s property in October 2016. The Council reopened her case.
27. In November 2016, the Council installed noise monitoring equipment in Ms B’s property. The Council analysed the audio recordings and decided there may be a statutory nuisance.
28. The Council wrote to Ms B’s neighbour to advise it was investigating a noise complaint and what this could entail. The Council met with Ms B’s neighbour who said he would make changes to how the birds were kept and try to reduce the noise.
29. The Council carried out further noise monitoring in February (twice), March, September and October 2017. On each occasion the Council reviewed the audio recordings and found no evidence of a statutory nuisance.
30. Ms B complained about how the noise monitoring equipment was set up in September 2018. In response, the Council installed a machine that would make a continuous noise recording. However, Ms B disconnected the machine the same day because she felt being recorded continuously intrusive. Ms B complained she had not agreed to this type of machine being used. However, the Council’s notes include an entry for a telephone conversation that took place in August 2018 between its officer and Ms B where she agreed to use a continuous recording machine.
31. In addition, the Council visited the site in February, March and August 2017. The Council did not witness a statutory nuisance on any of these visits. The Council offered to visit Ms B on other occasions, but this was not convenient for her.
32. In September 2017, the Council upheld a complaint by Ms B that officers were not available after 5pm in the evening. The Council refuted Ms B’s complaint that the investigation had not been thorough, explaining it had attempted to get evidence in different ways, some of which were beyond what it would normally do.
33. In October 2017, the Council told Ms B it could not take the investigation forward as it had no evidence of a statutory nuisance. The Council told Ms B she could take private action against her neighbour. The Council closed the case.

Investigation 2

34. In March 2018, Ms B made a complaint about the noise coming from her neighbour’s property to the Council. The case was allocated to a different officer than the one who had investigated her original complaint.
35. The Council sent Ms B and her neighbour the same standard letters as in paragraphs 24 and 25.
36. Ms B returned the noise diary sheets to the Council in July 2018.
37. Noise monitoring equipment was installed by the Council in August 2018. The Council decided the audio recordings suggested the noise coming from Ms B’s neighbours may be a statutory nuisance. The Council wrote to Ms B’s neighbour to advise him it was investigating a noise complaint and giving him advice about how to minimise crowning.
38. The Council installed noise monitoring equipment again in November 2018. The Council reviewed the audio recordings and decided there was no evidence of a statutory nuisance.
39. The Council visited the site in January 2019 and did not find evidence of a statutory nuisance. The Council held a case conference to review the case. It decided a sufficient investigation had been undertaken and no further action was necessary as there was no evidence of a statutory nuisance.
40. The Council wrote to Ms B to say it would not be pursuing the matter further because it had no evidence of a statutory nuisance. The Council advised Ms B she could take her own action through the Magistrates Court.
41. In April 2019, Ms B asked the Council to review her complaint. The Council explained it had investigated her noise complaint using different interventions and had not found a statutory nuisance. The Council signposted Ms B to the Ombudsman.

Analysis

42. The Council carried out two noise investigations between August 2016 and January 2019.
43. The Council installed noise monitoring equipment six times, carried out site visits and met with Ms B and her neighbour during the first investigation. The Council installed noise monitoring equipment twice during the second investigation and visited the site. These investigations were carried out in line with the Council’s policy and the Environmental Protection Act 1990.
44. The Council decided the noise from Ms B’s neighbour’s birds was not a statutory nuisance. This is a decision the Council was entitled to make. I have not seen any evidence of fault in how this decision was reached and so I cannot question its merits.

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Final decision 

45. I have completed my investigation and do not uphold Ms B’s complaint

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Investigator's decision on behalf of the Ombudsman