Summary: Mr X complained the Council failed to take appropriate action when he complained of noise nuisance from a neighbouring property. The Council was at fault when it fettered its discretion to consider the circumstances of Mr X’s noise nuisance complaints. The Council should make changes to its policy to avoid similar fault occurring in future.

The complaint

1. Mr X complained the Council failed to take appropriate action when he complained of noise nuisance from a neighbouring property.
2. Mr X says this caused him distress because of the noise levels and he is concerned the same thing will happen in future.

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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. 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

5. I spoke to Mr X and considered his view of his complaint.
6. I made enquiries of the Council and considered the information it provided.
7. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The Environmental Protection Act 1990

8. The Environmental Protection Act 1990 states councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance”. The noise complained about might be loud music, barking dogs or noise from industrial, trade or business premises.
9. For a noise to count as a statutory nuisance, it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure health or be likely to injure health.

Fettering discretion

10. It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.
11. The Neighbourhood Noise Policies and Practices (NNPP) for Local Authorities states “authorities should guard… against formulaic responses: a response to a complaint of nuisance that involves no more than sending a warning letter to the alleged noise-maker or requiring complainants to fill in diary sheets or refusing to respond unless more than one complaint is received from more than one complainant is unlikely to fulfil the duty to investigate complaints”.

What happened

12. In July 2020, Mr X’s neighbour held a party which he said lasted over 13 hours and where loud music was played over speakers in the garden. Mr X complained to the Police about the noise disturbance and was told to contact the Council.
13. The Council sent Mr X diary sheets and told him to keep a log of each noise disturbance. It told him it would only consider taking action after he had recorded six occurrences within 25 days. Mr X recorded noise nuisance from a similar event held 18 days later by the same neighbours, which lasted for eight hours. Shortly afterwards the Council wrote to him to say his case was closed.
14. Mr X complained to the Council about its failure to investigate his complaints of noise nuisance. The Council responded and said that when it received an alleged noise nuisance complaint it would send the complainant diary sheets and ask them to record six incidences in 25 days. The Council said “a one-off event can amount to a statutory nuisance, but it would have to be quite severe and cause widespread community impact. We are trying to set the criteria so that we eliminate one-off or very infrequent incidents but still capture incidents that are occurring on a regular basis”.
15. Mr X remained unhappy and complained to the Ombudsman.

My findings

16. The Ombudsman may find fault with councils for ‘fettering their discretion’, that is to say, for operating inflexible policies which do not allow for the application of discretion. This is because a blanket refusal to depart from a policy is arbitrary and likely to lead, at one time or another, to manifest injustice.
17. The Environmental Protection Act 1990 confers a duty on councils to investigate all complaints of alleged statutory nuisance. Councils can have systems in place to prioritise complaints to ensure effective use of resources. However, they should avoid policies which lay down prescriptive rules which mean that certain types of occurrences of alleged nuisance will not be investigated.
18. The current Council policy requires the complainant to record six incidents of alleged nuisance in 25 days. There is no evidence the Council considered departing from the policy to consider the individual circumstances of Mr X’s complaint. The Council fettered its discretion to investigate Mr X’s noise complaint which is fault.
19. The Council’s policy on requiring six incidents of alleged noise nuisance in 25 days is inflexible. For example, the policy would fail to capture weekly all night parties, such as the ones Mr X experienced and fears may occur again once the Covid19 lockdown ends. This is not in accordance with the Council’s duties under public law which says councils should consider the merits of each case and be flexible in departing from policy. That is fault and meant the Council took a rigid view of Mr X’s noise nuisance complaints.
20. Mr X experienced some injustice because he was left with uncertainty over whether the Council would consider any future noise nuisance complaints from him of a similar nature. However, this injustice is not significant enough to warrant a remedy at this stage. If the Council agrees to my recommendation below, it means that if Mr X has cause to make noise nuisance complaints again in future, they will be dealt with appropriately by the Council. It remains open for him to complain again to the Council and then return to the Ombudsman if the Council fails in future to act in line with its statutory duties.

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Agreed action

21. Within three months of the date of the final decision, the Council has agreed to review its policy on dealing with noise nuisance complaints to ensure it properly considers its use of discretion to investigate complaints which may fall outside its current policy requirements.

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Final decision

22. There was fault although this did not cause Mr X a significant injustice. The Council has agreed to my recommendation. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman