Summary: We will not investigate this complaint about the Council conducting a co-ordinated campaign against Mr X to destroy his business. We have not seen enough evidence of fault in the way the Council considered reports of noise nuisance and breaches of planning control. It is reasonable for Mr X to complain to the Information Commissioner’s Office about breaches of data protection regulations. Also we cannot achieve the outcome Mr X is seeking.

The complaint

1. Mr X complains the Council is conducting a coordinated campaign of maladministration with a vexatious complainant to destroy his business.
2. He wants:
• compensation of more than £200,000
• a public apology
• the erasure of all enforcement action; and
• an investigation into all officers and councillors involved.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered information provided by Mr X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr X’s complaint centres around the Council’s actions following reports of noise nuisance from Mr X’s business by a member of the public.
10. Mr X says the Council knows the member of the public harasses him yet acted on his reports of noise nuisance.
11. Section 79 of the Environmental Protection Act 1990 creates a duty on councils to investigate and, where identified, take action to address ‘statutory nuisances. Under the Act, a statutory nuisance is one which:
• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and / or
• injures health or is likely to injure health.

And which is happening, has happened and is likely to happen again, or is likely to happen in the future.

12. The Act specifies different things which can constitute a statutory nuisance. Some are general, while some can only be a statutory nuisance if they emanate from a particular source.
13. Things which can be a statutory nuisance if they come from a ‘premises’ (which can include both domestic and commercial properties) include:
• noise
• smoke, fumes or gases; and/or
• artificial light.
14. In this case the Council received a complaint about noise nuisance from Mr X’s business. Regardless of the person who makes or reports the noise, the Council has a statutory duty to investigate.
15. From the information I have seen, the Council provided the person with diary sheets and then noise recording equipment. It explained what was required to prove a statutory noise nuisance. This is the process we expect a Council to follow.
16. The Council decided the noise was causing a statutory nuisance. This is a decision it is entitled to make. It served an Abatement Notice. However, this was successfully appealed by Mr X’s solicitor as it was served on the wrong person.
17. The Council served a second Abatement Notice. This is an action it is entitled to take. Mr X could have appealed against this second notice. We consider it reasonable to expect him to have used that right.
18. Mr X also complains about the Council’s investigation into a breach of planning control.
19. The Council advised that during its investigation into the noise nuisance report, it became aware that there were conditions on the planning permission allowing the change of use of the premises to a bar/restaurant. It served breach of condition notices on the property owner. Both conditions have now been satisfied.
20. Once aware of a breach of planning control, it is for the Council to decide what action, if any, it will take. In this case it decided to serve Breach of Condition Notices. This is a decision it is entitled to make.
21. Mr X says the Council breached the data protection regulations. It is reasonable to expect Mr X to complain to the Information Commissioner’s Office (ICO).
22. The ICO is better placed to consider complaints about the Council’s compliance with data protection regulations.
23. I understand Mr X has concerns about the conduct of specific councillors. Complaints may be about a councillor’s conduct through the Council’s Monitoring Officer.
24. Finally, Mr X want significant financial compensation. The decision on whether the Council is able for his financial losses is a matter for the courts and not one which the Ombudsman can make.

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Final decision

25. We will not investigate Mr X ’s complaint because :

• We have not seen enough evidence of fault in the way the Council considered reports of noise nuisance.
• We have not seen enough evidence of fault in the way the Council dealt with breaches of planning control.
• It is reasonable for Mr X to complain to the ICO if he believes the Council has breached data protection regulations; and
• We cannot achieve the outcome he is seeking.

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Investigator's decision on behalf of the Ombudsman