Summary: We will not investigate this complaint about the Council’s response to the complainants reports of noise nuisance and damage to property. There is not enough evidence of fault in the Council’s actions to justify an investigation.

The complaint

1. Mrs X complains the Council approved a take-over of the residential communal areas in her building by a commercial restaurant. She says she has lost access to a fire exit and a stairwell to the bin store. She also complains she suffers from noise and vibration from the restaurant.

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The Ombudsman’s role and powers

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

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How I considered this complaint

2. I considered information provided by Mrs X and the Council.
3. I considered the Ombudsman’s Assessment Code.

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My assessment

4. The information we have seen shows Mrs X has made multiple complaints about noise, damage and blocking of communal areas, including access to the bin store and fire escape.
5. Evidence shows officers have visited several times on different days and at different times. Its responses to Mrs X show:
• officers did not witness noise amounting to a statutory nuisance
• officers did not witness any pest or odours which amounted to a statutory nuisance
• a new ceiling was installed as part of planning permission for the restaurant. This accords with the acoustic report produced as part of the planning application process
• the door onto the fire escape has been replaced but the opening is the same as in place with the previous tenant
• the restaurant only occupies the areas according to the approved plans, the blocked staircase was blocked by the previous tenant and not the current occupier; and
• the fire service is satisfied with the fire exit access
6. The Council also advised Mrs X that under s82 of the Environmental Protection Act, she has the right to approach the magistrates’ court direct and apply for an abatement order. The court will consider Mrs X’s evidence itself and decide whether a statutory nuisance exists.
7. Although we should criticise councils if we consider they have failed to carry out a proper investigation, it is important to remember the law only requires they take ‘reasonably practicable’ steps to investigate. This does not mean councils should always be able to identify a statutory nuisance if one exists. It may be that they have simply been unable to gather adequate evidence, despite taking all reasonable steps to do so.
8. It is not our role to act as a point of appeal against decisions properly made by councils with which complainants disagree. We cannot question council decisions if they have followed the right steps and considered the relevant evidence and information. While Ms X may be disappointed with the Council’s decision on her case, evidence shows the Council has investigated her reports of nuisance multiple times and has not witnessed a statutory nuisance. We have seen no evidence to suggest fault affected it decision.

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Final decision

9. We will not investigate Mrs X’s complaint because there is not enough evidence of fault in the way the Council investigated Mrs X’s reports of noise and other nuisance.

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Investigator's decision on behalf of the Ombudsman