Summary: Mr G complains about the Council’s inadequate investigations into his reports of noise and light nuisance from his neighbour. And his neighbour using his home for business use. The Ombudsman’s view is there is no evidence of fault in the Council’s investigations. So we cannot question the merits of its decisions.

The complaint

1. The complainant, whom I shall refer to as Mr G, complains the Council has been at fault for the way it has dealt with his complaints about his neighbour relating to:
• noise, from a variety of sources;
• light pollution; and
• unauthorised business use of his home.

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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 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)
3. 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

4. The information I have seen includes the documents Mr G supplied with his complaint and the Council’s responses under its complaints procedure. I have looked at the files the Council sent us and discussed the complaint with Mr G.
5. I sent my draft decision to Mr G and the Council and invited their comments.

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What I found

Legal and administrative background

Environmental protection

6. The Council’s Environmental Services team provides a service to investigate complaints of statutory nuisance. The statutory provisions relating to nuisance can be found in the Environmental Protection Act 1990. Noise can amount to a statutory nuisance. If an officer witnesses noise which in her opinion amounts to statutory nuisance, she may initiate enforcement action to stop the nuisance and prevent its recurrence.
7. The Environmental Protection Act 1990 defines statutory nuisance in relation to noise as noise emitted from premises that is prejudicial to health or a nuisance. There is no set level at which noise becomes a nuisance. In deciding whether a noise amounts to a nuisance, an investigating officer would consider factors including:
• the locality in which the noise is occurring;
• the time of day or night the noise is occurring;
• the loudness and duration of the noise;
• how often the noise occurs.
8. An environmental health officer will normally need themselves to witness the statutory nuisance; to come to an independent judgment based on level, length, timing and location. It is solely the council officer’s decision whether a nuisance is a ‘statutory nuisance’. A complainant may have a very strongly held and opposing views about the level of the nuisance and its impact on their health and wellbeing. However the law is clear the decision about this is for the officer alone to make.

Planning

9. Planning law groups common uses of buildings into classes, such as residential and business use. (Town and County Planning (Use Classes) Order 1987 (as amended)) A change of use of a building needs planning permission, if it is a material change. There is no legal definition of ‘material change of use’. But it is about the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree. Councils should consider the facts on a case by case basis.
10. Councils are under a duty to investigate complaints about alleged breaches of planning control. One of the tools available to them are planning contravention notices (PCN). The purpose of a PCN is to seek information about suspected breach(es) of planning control.

What happened

Environmental health

11. In April 2020 Mr G complained to the Council four times about loud amplified music noise from his neighbour. The Council decided that this noise did not constitute a statutory nuisance and advised Mr G of this at the end of the month.
12. Mr G raised complaints about other sources of noise nuisance from his neighbour – from construction and a barking dog. He also complained about light pollution from an outside lamp in the garden. And that his neighbour was operating a business from his home. The Council’s Environmental Services team opened new investigations about the new nuisance issues. It passed the business use complaint to the Council’s Planning Services enforcement team.
13. The Council’s Environmental Services team’s asked Mr G to complete a diary listing noise nuisance. It also carried out several monitoring visits during May and early June. These monitoring visits (by different officers and at different times of the day and night) did not witness any noise that in the officers’ opinion amounted to a statutory nuisance.
14. The Council’s records show it decided it could not do its monitoring investigation form inside Mr G’s garden, due to a risk assessment around its COVID-19 protocols. Mr G says the place where officers carried out their monitoring was inadequate, due to shrubbery blocking a view into the neighbour’s garden. The Council has sent me a location plan and photographs of where its officers carried out their monitoring. It has also sent video/audio recordings from those monitoring visits.
15. The Council’s Environmental Services team closed Mr G’s complaints towards the end of June, as it had collected no evidence of a statutory nuisance. It emailed Mr G to advise of this in relation to each of his complaints.
16. Mr G complained. The Council did not uphold the complaint.

Planning

17. The Council’s Environmental Services team passed Mr G’s complaint about business use to its Planning Services enforcement team. Mr G’s complaint said evidence of the business use were vans parked outside his neighbour’s house, building materials in the garden and construction noise.
18. The Council’s planning enforcement team served the neighbour with a PCN. The neighbour responded with answers to the questions the Council asked.
19. The Council was satisfied with the neighbour’s response. As it did not have evidence to support the alleged business use, its planning enforcement team closed its investigation, as there its view was there was no breach of planning control. It informed Mr G of its decision.

Analysis

20. To be clear, the Ombudsman’s role is not to assess whether there has been a statutory nuisance, or a breach of planning permission. I have considered whether the Council has conducted investigations that followed the law and guidance. I am satisfied the Council has done so in this case.

Environmental health

21. To take action against a statutory nuisance, the Council would need evidence it could use in court. As a start, this would need to include its officers witnessing the alleged nuisance.
22. The Council has visited several times and not witnessed noise or light amounting to a statutory nuisance. Mr G says the place the Council’s officers carried out their investigations meant the investigation was flawed. But having looked at the location plan, photographs and a map, my view is the Council’s officers were in a place where, more likely than not, they would have witnessed any noise that was of sufficient loudness and duration to amount to a statutory nuisance.
23. The Council has taken appropriate informal action to respond to Mr G’s reports. It carried out site investigations and considered the evidence he provided. Whilst this noise is understandably distressing to Mr G, it was not fault for the Council to take the view that, without independent verification, the evidence was not robust enough for it to consider legal action. Therefore, I cannot say there was fault in its actions, no matter how strongly Mr G disagrees.

Planning

24. The Council’s planning enforcement team opened an investigation on receiving Mr G’s complaint about change of use. It correctly served Mr G’s neighbour with a PCN. I have seen the neighbour’s response. The information in it shows the Council was entitled to take the decision to close its investigation. That is the extent of the Ombudsman’s role. It is not for us to decide on the merits of the Council’s decision if, as here, there was no administrative fault in its investigation.

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Final decision

25. I do not uphold the complaint and have completed my investigation.

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Investigator's decision on behalf of the Ombudsman