Summary: We will not investigate part of Mr X’s complaint about how the Council investigated his complaints of antisocial behaviour and noise nuisance from a neighbour because there is insufficient evidence of fault. We will not investigate Mr X’s complaint about the Council’s interpretation of caselaw because a court is better placed to consider the matter.

The complaint

1. Mr X complained the Council misapplied elements of the Environmental Protection Act 1990 and subsequent caselaw when determining whether an issue was a statutory nuisance.
2. Mr X said the matter caused him frustration and time and trouble to resolve.

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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, or
• 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 information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

Background

6. Mr X complained about noise nuisance from a neighbour. Mr X has preexisting health difficulties. Mr X said the Council misapplied caselaw when determining whether the noise amounted to a statutory nuisance due to his preexisting health conditions. Mr X said there are two tests in the law set under the criteria in s78(1) of the Environmental Act 1990:
1. whether the issue complained about is prejudicial to health; or
2. whether the issue is a nuisance.
7. Mr X highlighted caselaw that decided when determining whether a statutory nuisance had occurred an organisation should only consider how it affects the average or “typical” person. Mr X said this only applied to the second point above relating to “nuisance”, not the first “prejudicial to health”; but that the Council had applied it to both.
8. In its complaint response the Council explained actions it took in relation to Mr X’s complaint of noise nuisance including:
1. installing noise monitoring equipment;
2. providing Mr X with access to a noise app to record instances of noise; and
3. writing to Mr X’s neighbour and the owner of the property to warn them about the issue.
9. The Council explained to amount to a statutory nuisance the test is whether the issues complained about would affect a typical person, rather than someone with preexisting health issues. It also explained the issues complained about would need to have a clear correlation between the action and the affect an individual’s health to meet the tests under the law.
10. The Council told Mr X it ended its involvement because he wrote to it following the warning letter it sent to the neighbour and the neighbour apologised. The Council considered the issue resolved and closed its involvement. It informed Mr X that, if the issue reoccurred, he could contact it again to for its consideration.

Analysis

11. The Council acted to investigate Mr X’s complaints of noise nuisance. There is insufficient evidence of fault in that process, and so we will not investigate.
12. We will also not investigate Mr X’s complaint about the Council’s interpretation of caselaw in the application of its policy. This is not the role of the Ombudsman. The role of the Ombudsman is to determine maladministration. In doing so, we use a “plain” reading of the law and caselaw to decide whether maladministration has occurred.
13. If Mr X believes the Council has misapplied its understanding of caselaw by using the “average person” test to both the first (prejudicial to health) and second (whether the issue is a nuisance) limbs of the criteria outlined in s78(1) of the Environmental Act 1990 and the nuances around the matter, this would be best considered by a court, and so we will not investigate.

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Final decision

14. We will not investigate part of Mr X’s complaint because there is insufficient evidence of fault. We will not investigate the remainder because a court is better placed to consider the issues.

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Investigator's decision on behalf of the Ombudsman