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London Borough of Southwark (20 013 511)

Category : Environment and regulation > COVID-19

Decision : Upheld

Decision date : 07 Dec 2021

The Ombudsman's final decision:

Summary: We have discontinued our investigation of a complaint about noise nuisance, arising from temporary access arrangements for a leisure centre. This is because the temporary arrangements have now been removed, and so there is no value to further investigation. The Council was at fault, because of how it addressed the situation as a potential statutory nuisance, but this did not cause the complainant an injustice. We have not investigated a complaint about ongoing noise nuisance from the leisure centre, because the complainant has a right to apply to the courts about it.

The complaint

  1. I will refer to the complainant as Ms J.
  2. Ms J says she is disturbed by noise from a nearby leisure centre. In particular, she complains about:
  • the placement of a queue for a temporary entry and exit to the centre, which creates noise nuisance to her property from visitors and the opening and closing of a gate; and
  • the noise from classes inside the centre.

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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. 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)
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

  1. I reviewed Ms J’s correspondence with the Council, the Council’s comments in response to my enquiries, and some videos and photos provided by both parties.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. Ms J has lived close to a leisure centre for a number of years. In that time, she has complained several times to the Council about the noise the centre creates.
  2. In response to the COVID-19 pandemic, in 2020 the leisure centre introduced some measures to reduce the risk of infection between staff and visitors. This included asking some visitors to enter the centre by an alternative door, which is at the end of an alley running directly behind Ms J’s property. The centre also restricted the number of people allowed in the centre, meaning visitors frequently had to queue along the alley.
  3. The other end of the alley, near Ms J’s property, is enclosed by a pair of metal gates. The Council has explained it installed these gates to prevent fly-tipping in the alley.
  4. In November 2020, Ms J contacted a Councillor about noise caused by people queueing. The Councillor passed Ms J’s email to the Council, which decided to treat it as a stage 1 complaint, and provided a formal response on 4 December (I have not seen a copy of Ms J’s original email).
  5. The Council explained the leisure centre had closed between March and July, and again in November, in line with national COVID-19 restrictions. In order to re-open safely, the Council had completed a COVID-19 risk assessment, which had identified a need for a one-way system inside the centre. To facilitate this, it had opened the ‘alley’ entrance, and restricted the number of visitors who could enter the centre at any one time.
  6. To minimise the impact of these measures on nearby residents, the Council said it had:
  • notified them in advance;
  • reduced the volume on class instructors’ microphones, meaning they were now “quieter” than before the pandemic;
  • installed a shorter bolt on the alley gates, to prevent it scraping the ground when the gate was opened or closed. The Council also said the centre opened the gates in the morning and closed them in the evening, in line with its opening hours. It highlighted the use of the alley was a temporary measure;
  • communicated with staff and visitors to ask them to be considerate of residents, and to take care when opening and closing the gates;
  • informed instructors they must comply with the requirements to reduce noise; and
  • referred Ms J’s complaint to its noise team.
  1. The Council said it would work with the leisure centre operator to minimise disruption, and reiterated the current arrangements were temporary. It also said “further mitigation measures [would] be enforced” if found necessary as a result the noise team’s investigation.
  2. Ms J referred her complaint to the Ombudsman on 9 March. At that point, we decided her complaint was premature, and referred it back to the Council for further consideration. The Council then responded at stage 2 of its procedure on 26 April.
  3. The Council acknowledged Ms J had questioned why the centre needed to use the alley as an alternative entrance. She had complained people queueing to enter caused excessive noise to her property and meant she had to keep the windows closed. She had also questioned why the centre could not keep doors closed during classes, to reduce the noise they created. Ms J had also complained visitors would frequently allow the alley gates to slam closed, causing a loud bang each time.
  4. The Council reiterated the leisure centre was legally required to introduce COVID-19 safety measures, and was using the alley entrance to facilitate this. The Council did not agree it was at fault for this. It said it was regularly reviewing the measures until they could be removed.
  5. The Council said that, since the Government had allowed leisure centres to re-open on 12 April, its noise team had “not observed noise that could be considered as a statutory nuisance”. It encouraged Ms J to contact the noise team if she believed the centre was causing a statutory nuisance.
  6. The Council also explained again it had sought to address Ms J’s complaints about the gate by shortening the bolt, and by ensuring the gates were only opened and closed at the beginning and end of the day respectively. It said it had addressed her complaint about instructors’ microphones by reducing their volume, and said it was confident the noise would reduce further once it could remove the temporary measures and return to closing the doors.
  7. Ms J wrote a further email to the Council on 3 May. She said she had noticed an improvement in the situation, with fewer incidents of the gates being slammed and the leisure centre doors being kept closed more consistently. However, she said the noise caused by people queueing to enter still persisted. She asked if the Council could place signs in the alley, asking queueing visitors to be considerate of residents.
  8. The Council referred Ms J’s request for signs internally to its leisure monitoring officer, who approved it and arranged for signs to be put up.
  9. Ms J referred her complaint back to the Ombudsman in June, at which point we accepted it for investigation.

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Legislative background

Statutory nuisances

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
  2. Typical things which may be a statutory nuisance include:
  • noise from premises or vehicles, equipment or machinery in the street
  • smoke from premises
  • smells from industry, trade or business premises
  • artificial light from premises
  • insect infestations from industrial, trade or business premises
  • accumulation of deposits on premises
  1. For the issue to count as a statutory nuisance, it must:
  • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
  • injure health or be likely to injure health.
  1. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
  2. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
  3. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices

  1. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
  2. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
  3. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Section 82

  1. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
  2. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

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Analysis

  1. In her complaint to the Ombudsman, Ms J said she had suffered ongoing noise problems caused by the leisure centre since 2004.
  2. The law says a person should approach the Ombudsman within 12 months of becoming aware of an issue they wish to complain about. We may disapply this rule, where we consider it appropriate, but must first be satisfied there is a good reason for the complainant’s delay in approaching us, and that it remains possible to complete a fair and robust investigation.
  3. In this case, I do not consider it practical to attempt to investigate 17 years of complaints about noise. I will therefore not disapply the 12mth rule here. Rather, I will restrict my consideration to the issues Ms J raised about the COVID-19 safety measures the leisure centre introduced.
  4. The Ombudsman’s role is to review how councils have made and implemented their decisions. If a council has followed the appropriate procedure, considered all relevant information, and given clear and logical reasons for its decision, we generally cannot criticise it. We do not make operational or policy decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with something a council has done.
  5. Ms J has made a general criticism of the Council that it implemented, to her mind needlessly, a queueing system for visitors to enter the leisure centre via the alley. She considers a queue would have been better accommodated at the main entrance of the leisure centre, which is some distance away from her property and others.
  6. But I consider the Council has given a clear and logical explanation for why it needed to use the alley, having completed a COVID-19 risk assessment. This was a matter of professional judgement for the Council to make, and it was entitled to draw the conclusion it did. It is not for me to question the merits of the Council’s decision.
  7. I have considered the list of measures the Council said it had implemented, to mitigate the impact of the temporary access arrangements on nearby residents. This included shortening the bolts on the gates, to stop them dragging on the ground, ensuring the gates were only opened and closed once per day, and reminding staff and visitors to be considerate. And, later, placing signs in the alley to reinforce this, at Ms J’s request.
  8. These measures appear quite comprehensive, and – accepting the Council’s decision to use the alley – it is difficult to imagine what else it could reasonably have done here. And, indeed, Ms J’s email to the Council indicated these measures had had some positive effect.
  9. I note Ms J disputes the Council modified the bolts on the gates. She has provided video evidence to the Ombudsman, which appears to support this point – the bolt in the video remains in contact with the ground, even in the ‘open’ position, which means it would inevitably drag on the ground when the gate moves.
  10. However, the Council has also provided the Ombudsman with photographs of the bolts. These show a clearance of several centimetres between the bolt and the ground. The Council says this work was completed in September 2020.
  11. I cannot reconcile this conflict in the evidence; nor can I speculate how Ms J and the Council have managed to provide such conflicting evidence. I have no reason to doubt either party.
  12. I also note Ms J complains the gates were not being bolted open each morning, meaning visitors would frequently allow them to slam closed through the day. Again, she has sent video footage which supports this. And although, again, I have no reason to doubt the Council reminded staff to keep the gates open to prevent this, it appears reasonable to conclude they did not always adhere to this instruction.
  13. But, ultimately, I cannot overlook the fact the leisure centre has now returned to its ‘normal’ access arrangements, Ms J having confirmed this happened in July. Whatever the facts about the bolts and the gates, the situation is now resolved, and I cannot see what value there would be in further investigation at this time. The same applies to Ms J’s complaints about noise from people queuing, and from the gate slamming.
  14. Even accepting this, however, I remain of the view there is evidence of fault here.
  15. In response to Ms J’s stage 1 complaint, the Council said it had referred the matter to its noise team, which would investigate and, if necessary, take action to address any problems it identified. Then, in its stage 2 response, the Council said its noise team had not “observed … a statutory nuisance”, implying the noise team had investigated the matter as a potential statutory nuisance in between the two stages of Ms J’s complaint.
  16. To this end, I asked the Council to explain what the noise team had done to investigate. It replied:

“[The] Noise Nuisance Team have not visited nor have they witnessed any noise from the location… Anecdotally, [name], Noise and Nuisance Team Leader remembers being asked to task officers to look at this particular situation, although, he cannot find when these visits took place, or any further information on them.

“If anything seen had required formal action, this would have required a record to be created in [name of database] to record those actions. There are no records of such in [the database].”

  1. I have several concerns about this response. First, it is contradictory, confirming both that no visits took place, but also that visits may have taken place. Second, and either way, we would expect the Council to have reliable records of such a recent investigation as this one. It is not acceptable for it to rely on ‘anecdotal’ evidence to show what it has done.
  2. Given the lack of reliable records, therefore, I am not convinced the Council was in a position to declare to Ms J, unequivocally, it had not “observed” a statutory noise nuisance, as it did in the stage 2 response. It appears, in fact, there was little to no investigation of the alleged nuisance.
  3. This brings me to another important point. The Environmental Protect Act sets out several categories for what can be considered a statutory nuisance. These include noise from premises, and from vehicles, equipment or machinery in the street. But these categories do not include noise from people in the street – which is, in effect, what Ms J’s complaint focussed on.
  4. So, and regardless of any other consideration, it appears there was no prospect of Ms J’s complaint being found to constitute a statutory nuisance anyway. This makes the Council’s comments, implying it had investigated it as such, even more difficult to give credence to.
  5. I am aware Ms J’s complaint also covers noise coming from the leisure centre itself. As noise from a ‘premises’, this could constitute a statutory nuisance. And, as I understand it, this is part of Ms J’s general, ongoing complaint about noise from the leisure centre, and not something which arose specifically because of the centre’s COVID-19 safety measures.
  6. I cannot say what the Council has done to address this issue in the past, and this is not something we will now investigate, for the reasons I have already explained.
  7. And, with respect to Ms J’s ongoing complaint about noise from the centre, I must consider the fact she has a suitable alternative remedy here, in the form of section 82 of the Environmental Protection Act.
  8. As described in the previous section, the Act says local authorities should investigate potential statutory nuisances, and, if established, require the perpetrator(s) to abate them. However, under section 82 of the Act, members of the public can also take their own action against the perpetrator(s), by applying to the magistrates’ court. If persuaded, the court can then order the perpetrator(s) to abate statutory nuisances they are causing.
  9. The law also says the Ombudsman should not investigate complaints, where the complainant has the right to take the substantive matter to court, and we consider it reasonably practical for them to do so.
  10. Although we do normally accept complaints about councils’ handling of nuisance investigations, where the source of the alleged nuisance is also owned by the council in question, we generally consider it better for complainants to rely on their rights under s82. This is because, unlike the court, we cannot decide ourselves whether there is a statutory nuisance, and we must still leave this to the council to judge. Where the council would also be responsible for abating the nuisance, this presents an obvious conflict of interest.
  11. And, even where a council did accept it was causing a statutory nuisance, it could not practically serve an abatement notice, as it would be required to do so on itself.

Conclusions

  1. There are several distinct, but closely intertwined, strands to Ms J’s complaint.
  2. In terms of the Council’s efforts to mitigate the noise impact of the alternative access arrangements, it appears these measures had the desired effect, at least to some degree. I acknowledge Ms J was not entirely satisfied with them, but given the alternative access arrangements are no longer in place, I am not persuaded there is any value in further investigation here. I have therefore discontinued my investigation of this element.
  3. But I still consider there is fault by the Council here. It implied it had investigated Ms J’s complaint as a statutory nuisance; but confirms it did not actually visit the site, and has no record to show what, if anything, it did as part of this alleged investigation.
  4. And, in addition to this, it appears the central part of Ms J’s complaint could never have constituted a statutory nuisance under the Environmental Protection Act anyway. The Council should have explained this to her.
  5. It is difficult, however, to perceive a meaningful injustice to Ms J from these faults. If the Council could not have taken action on the situation as a statutory nuisance anyway, then nothing obvious has been lost by its apparent failure to properly investigate it.
  6. I appreciate Ms J is greatly frustrated by what she sees as the Council’s failure to address her longstanding noise complaint. But I have not, and cannot, consider what the Council may or may not have done in the past.
  7. And, while Ms J may wish to continue to pursue a complaint about noise nuisance from the centre itself, as opposed to the temporary access arrangements, this is not something the Ombudsman should investigate. This is because Ms J’s rights under section 82 provide her with a suitable, and potentially more effective, alternative.
  8. It is for Ms J to decide whether to use her section 82 rights, or to ask the Council to continue to consider her complaint about noise from the centre. But I do not consider the Ombudsman should intervene here.
  9. I should note Ms J has made reference to being particularly sensitive to noise for health reasons. The law says a statutory nuisance is one which causes unreasonable disturbance to the ‘average’ person. Where a problem arises only because of a person’s unusual sensitivities, therefore, it is unlikely to be considered a statutory nuisance.
  10. I make no judgement whether this consideration is applicable to Ms J’s situation. But it is a factor she should note if she does choose to pursue her complaint further, either with the Council, magistrates’ court, or both.

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Final decision

  1. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman

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