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Brentwood Borough Council (20 007 588)

Category : Environment and regulation > Antisocial behaviour

Decision : Not upheld

Decision date : 15 Nov 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to properly investigate his complaints regarding noise and smoke pollution coming from his neighbour’s property. He said this matter has caused him and his family stress and inconvenience. The Council was not at fault in how it responded to Mr X’s complaint.

The complaint

  1. Mr X complained the Council failed to properly investigate complaints he made about noise and smoke pollution coming from his neighbour’s home.
  2. He said this matter has put him and his family to time and trouble.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I contacted Mr X and discussed the complaint with him.
  2. I made enquiries of the Council and considered the information it provided.
    This included complaint correspondence shared between Mr X and the Council, diary sheets and pictures provided by Mr X.
  3. I wrote to Mr X and the Council with my draft decision. I considered Mr X’s comments before I wrote the final decision.

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What I found

Law

  1. The Environmental Protection Act 1990 says councils must investigate complaints about noise that could be a statutory nuisance. The noise complained about might be noisy neighbors or noise from industrial, trade or business premises.
  2. For noise to count as a statutory nuisance, it must:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
    • injure health or be likely to injure health
  3. Usually the statutory nuisance will need to be witnessed by an Environmental health officer and he/she will make an independent judgement. The process of determining what level of noise constitutes a nuisance is subjective.
  4. Councils can decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. This may mean writing to the person causing the nuisance.
  5. If an officer decides a statutory nuisance is happening, the Council must serve an abatement notice, which requires whoever is responsible to stop the noise.

What happened

  1. Mr X has been sporadically contacting the Council about the noise coming from his next door neighbour’s business since 2019. Mr X has also contacted the police and his local MP.
  2. In March 2020 Mr X complained to the Council and sent weekly diary sheets recording the time and nature of the disturbances. The Council was unable to carry out non-essential visits at this time due to COVID-19 but logged Mr X’s complaints and later carried out visits to Mr X and his neighbour. The environmental officers that visited did not judge the noise and smoke to constitute a statutory nuisance.
  3. Mr X complained again to the Council in June 2020 and said the noise and smoke coming from his neighbour’s home was disrupting his and his family’s wellbeing. He again sent the Council updates and diary sheets detailing the incidents.
  4. The Council wrote to Mr X on 15 June 2020 and said it had been investigating Mr X’s complaints for over 18 months and had not uncovered evidence of a statutory nuisance. The Council said, “During this period a number of officers from the team have looked into the case, as well as carried out visits to the area in question to independently assess the level of disturbance reported but at no stage have I or any officers witnessed any incident that were judged to be a statutory nuisance.” The Council told Mr X it would not take further action and gave him information about how he could take private action against his neighbour.
  5. Mr X continued to contact the Council about the noise in the following months. He also sent video recordings and pictures of his neighbour’s business.
  6. On 23 October 2020 he told the Council he could not work due to the noise of machinery coming from his neighbour’s property. He said he had tried to discuss the matter with his neighbour, but they were unable to come to an agreement.
  7. The Council continued to visit the property and logged the complaints Mr X was making.
  8. Mr X wrote to the Council on 17 January 2021 asking it to install noise recording equipment. Mr X said the matter was affecting his and his wife’s mental wellbeing and his son suffered with an illness which was exacerbated by the noise and smoke coming from his neighbour’s property.
  9. On 19 March 2021 Mr X’s solicitor wrote to the Council on his behalf, stating the smoke and noise pollution coming from Mr X’s neighbour represented a statutory nuisance. The solicitor asked to Council to visit the site and investigate Mr X’s claims.
  10. On 22 March 2021, the Council responded to Mr X’s complaint at Stage 1 of its complaints process. The Council partially upheld the complaint and said it was still investigating the statutory nuisance but accepted it had failed to effectively communicate this to Mr X.
  11. Mr X was unhappy with this response and escalated the complaint to Stage 2.
  12. The Council sent its Stage 2 response on 10 May 2021. The Council listed 18 visits environmental officers had made to the site between 17 November 2020 and 23 March 2021. The Council said the officer heard 220 secs of noise over 3 visits but did not hear anything on 15 visits. The Council said it did not uphold Mr X’s complaint as the officer did not find evidence of a statutory nuisance.
  13. The environmental officer who carried out the visits wrote separately to Mr X and his solicitors describing the visits he had made and reiterating that he had not found evidence of a statutory nuisance.
  14. Mr X brought his complaint to the Ombudsman because he was unhappy with the Council’s management of the situation. He also felt the Council had failed to keep him updated on its investigation and did not respond to his complaint promptly.
  15. In response to the Ombudsman’s enquiries the Council confirmed it installed noise recording equipment the site on 16 September 2021. The Council maintained it did not find evidence of a statutory nuisance.

Findings

  1. Mr X has complained the Council has not done enough to investigate the noise and smoke complaints he has raised. It is not the Ombudsman’s role to determine whether Mr X is experiencing a statutory nuisance, this is the Council’s job. It is the Ombudsman’s role to assess whether the Council has followed the law in how it has responded to Mr X’s complaints. The law requires the Council to investigate any complaints of a suspected statutory nuisance. Based on the evidence seen so far, the Council has repeatedly sent environmental officers to Mr X’s property to witness the noise over several months. The Council has installed noise recording equipment and communicated with Mr X about this issue over several years. The Council has not found evidence of a statutory nuisance. This does not mean that Mr X is not experiencing inconvenience however, the Council is entitled to decide that the actions it has taken so far are sufficient and in line with the law. There is no evidence of fault in the way the Council has responded to Mr X’s complaint.

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Final decision

  1. There was no fault in the Council’s actions. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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