Summary: We will not investigate Mr X’s complaint about the way the Council has handled his concerns about hearing noise nuisance and anti-social behaviour. There is insufficient evidence of fault to warrant an investigation.

The complaint

1. In short, Mr X says the Council has ignored evidence of anti-social behaviour and noise nuisance recorded on its noise recording device. Mr X says this has adversely affected the mental health of his whole family including their pet dog.
2. Mr X wants a reinvestigation, a declaration of statutory nuisance existing and formal action against the perpetrators.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating
• there is another body better placed to consider this complaint

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered the information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Environmental Protection Act 1990 (EPA 1990) places a duty on councils to investigate reports of nuisance and to take reasonable steps to investigate any complaints of statutory nuisance that it receives. However, the council may consider that a nuisance is not being caused.
7. If the Council had considered the issue to be a statutory nuisance it would be required to serve an abatement notice. There is no duty to serve a notice if the Council decides there is no statutory nuisance, as in this case. These notices carry a right of appeal to the magistrate’s court, and the resident can appeal if they believe the notice was unreasonable or incorrectly served.
8. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
9. The complaints correspondence shows that Mr X’s complaint was reviewed by a senior officer. This review backed the initial case officer’s decision that the noise recorded was not actionable under the EPA 1990.
10. We cannot overrule the Council’s decision on whether to take action. It isn’t our role to say whether the noise that someone is complaining about is a nuisance in law or whether action must be taken to reduce it. Only a qualified officer can decide if there is a statutory nuisance.
11. We will not investigate. Essentially, Mr X disagrees with the Council’s judgement that the noise on the recording device does not meet the threshold of statutory nuisance. But this is not necessarily evidence of the Council acting with fault.
12. With respect to Mr X’s complaint about the Council refusing to release the noise recording to him, Mr X can raise this with the Office of the Information Commissioner (ICO). This is because the ICO is better placed to decide if the recording should be released as it is the national regulator for information rights matters.
13. Finally, it is open to Mr X to take his own action under section 82 of the Environmental Protection Act 1990 against the person(s) causing the noise complained of. If the court decides Mr X is suffering a nuisance, it can order the person responsible to take action to stop or limit it.

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Final decision

14. We will not investigate this complaint about the Council’s investigation of noise nuisance/anti-social behaviour. There is insufficient evidence of fault which would warrant an investigation.

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Investigator's decision on behalf of the Ombudsman