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Maidstone Borough Council (17 004 195)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 14 Mar 2018

The Ombudsman's final decision:

Summary: Mr B complained about the Council’s lack of action about nuisance he has suffered from his neighbour’s property. The Council’s decision to close its investigation was not affected by fault. The Council was at fault for not telling Mr B its decision, but this did not cause Mr B a significant injustice.

The complaint

  1. Mr B complains that the Council has not properly investigated the nuisance he suffers from his neighbour’s property. Mr B says since October 2016 he has been suffering from vibrations, noise, smoke, and odour nuisance from his neighbour’s property. Specifically, Mr B complains that the Council:
    • lost some of his incident record sheets which he had sent to the Council.
    • did not visit him to assess the nuisance during the night when the nuisance was worst.
    • said it would close the case if he did not use the bodycam offered by the Council, even though he had explained that the smoke nuisance had stopped and the bodycam would not help the Council assess the noise nuisance.
    • did not respond to his concerns about the bodycam charger getting hot and that its electrical test had expired.
    • was wrong to say that nobody else had complained because another neighbour had also witnessed the nuisance.
    • did not tell him the outcome of its investigation after he returned the bodycam and the footage he recorded.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
  2. 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)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered Mr B’s complaint form and the supporting documents he sent. I have discussed the complaint with Mr B. I have considered the information provided by the Council in response to my enquiries. I have sent my draft decision to Mr B and the Council for comments. I have considered Mr B’s response to my draft decision including the recordings and photographs he sent. The Council did not provide any comments in response to my draft decision.

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What I found

  1. The Environmental Protection Act 1990 gives local authorities the power to take action about ‘statutory nuisances’ in their area. The Act defines what a statutory nuisance is and includes the following: smoke, fumes or gases, and noise.
  2. Local authorities must investigate complaints from members of the public about issues which could be a statutory nuisance. For the issue to be a statutory nuisance it must:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or,
    • injure health or be likely to injure health.
  3. Where a local authority is satisfied that a statutory nuisance exists in their area, it must serve an abatement notice requiring the nuisance to stop or be limited to certain times. If a person does not comply with an abatement notice they can be prosecuted and fined.

What happened

  1. Mr B has been complaining to the Council about nuisance from his neighbour’s property since early December 2016. Mr B considers his neighbour has been operating a commercial laundry-related business at the property which has resulted in smoke, noise, vibrations and odour nuisance. Mr B says the nuisance has been making him and his wife ill.
  2. On 5 December 2016 the Council responded to the nuisance reported by Mr B by providing a leaflet containing advice and incident record sheets for him to complete.
  3. On 26 December Mr B sent completed incident record sheets dating back to October 2016 to the Council. The Council received this letter on 3 January 2017. This resulted in a Council environmental protection officer visiting Mr B’s neighbour to assess the noise on 17 January. The officer listened to the washing machine and dryer at the property but did not consider the noise was intrusive and did not feel any vibrations in the walls.
  4. The officer arranged a further visit for 24 January and witnessed the noise from the washing machine and dryer from Mr B’s property.
  5. The officer again did not consider the noise was intrusive and said he would not be looking to install a noise recorder.
  6. Following the visit, the officer wrote to Mr B saying he did not consider a statutory nuisance exists. The officer provided Mr B with information about a mediation service and his right to take his neighbour to court.
  7. On 14 February Mr B put in a complaint to the Council about its response to the nuisance he reported. The Council responded at stage 1 of its complaints procedure on 23 February and said it was satisfied with the way the nuisance had been investigated. But, the Council provided Mr B with further incident record sheets to complete because he said the nuisance had got worse.
  8. Mr B put in a stage 2 complaint to the Council on 1 March. Mr B also provided completed incident record sheets recording the nuisance from January.
  9. On 6 March Mr B phoned the Council and said because of the noise and odour from his neighbour’s property he is unable to sleep at night and has to sleep during the day. The Council notes say that its officer advised Mr B to call the Council when the nuisance was occurring and the Council would respond as soon as possible. The Council officer advised Mr B that the Council did not have an out of hours service anymore. The note of the call says Mr B wanted an evening response because the problems were acceptable during the daytime. The Council’s note says it was agreed that the Council would provide a quick daytime response as Mr B’s wife mentioned she had felt unwell at 1pm recently. Mr B says this was on a Sunday but the officer would not listen to him. The Council’s notes say Mr B reluctantly agreed to the officer’s suggestion of response visits during the daytime.
  10. On 17 March Mr B’s wife called the Council to request monitoring of the nuisance. This resulted in a Council officer visiting the property at 5:15pm. The officer’s notes of the visit say they did not observe any odours or noise. The officer suggested an out of hours or weekend response. Mr B said the nuisance is worse in the evening and after midnight. The officer replied by saying the Council is not resourced to do out of hours visits without first experiencing the nuisance during the day. Mr B says the officer did not suggest an out of hours response and clearly said this was not going to happen.
  11. On 29 March Mr B phoned the Council to report a black soot-like deposit in his bedroom. Council officers visited Mr B on the same day but say the visit was inconclusive and officers could only identify the deposit as dust. The officers also say they found no other deposits in other rooms.
  12. On 30 March the Council provided its final response to Mr B’s complaint. The Council did not accept it was at fault and said its investigation was ongoing.
  13. In response to a further letter from Mr B and more completed diary sheets about the nuisance, the Council wrote to him saying it would undertake planned visits during the evenings of 4 and 5 April, starting at 7.30pm and 8pm respectively. The Council also invited Mr B to call the Council if the nuisance occurs during office hours so officers can visit.
  14. On 3 April Mr B called the Council during office hours to report nuisance. Two Council officers visited Mr B but said they could not hear any noise. Mr B says the officers knocked on the door loudly which resulted in his neighbour turning the washing machine off. The officers also said there was no evidence of the smoke/soot which Mr B said had entered his kitchen at the weekend when he opened his back door.
  15. Mr B said the planned visits on 4 and 5 April would be of no use because his neighbour will turn the machines off and it would be too early to witness the smoke. The planned visits did not take place because Mr B told the Council his neighbour had turned the water supply off.
  16. On 11 April a Council officer phoned Mr B and suggested providing a CCTV bodycam, which record video and sound, so he could record the nuisance during the night. Mr B said the bodycam would not be able to pick up the noise or record the odour and vibrations. Mr B also said the smoke nuisance is now less of an issue. After the phone call the Council sent Mr B a letter again offering use of the bodycam. The Council said that Mr B has previously said that the vibrations are so bad that items within his property shake. The Council said the bodycam would help show this. The Council said if Mr B refused the offer of the bodycam, the Council would close the case.
  17. The Council provided Mr B with the bodycam on 10 May. Mr B says when he charged the bodycam the charger got hot and he noticed that the charger’s electrical test had expired. Mr B says he phoned the Council about this but did not get a response. Mr B says he used the bodycam but the light did not always come on so he did not always know if it was recording.
  18. The Council received the bodycam from Mr B on 12 June.
  19. Mr B did not hear back from the Council, so he complained to the Ombudsman. In response to my enquiries the Council provided information about what happened after Mr B returned the bodycam. The Council said:
    • The bodycam footage was inconclusive and did not indicate a noise, vibration or odour nuisance.
    • During the latter stages of the investigation, the case officer identified that the occupants of the neighbouring property had moved out of the property. The officer considered that due to the property owners changing, the case would be closed.
    • The officer should have informed Mr B of this decision but failed to do so.
  20. Mr B says the nuisance from his neighbour’s property has continued since his neighbour moved out. Mr B says the property appears to be empty but people enter and leave the property.
  21. In response to my enquiries, the Council provided the following comments in response to the issues Mr B complains about. The Council said:
    • it has no record of any lost incident record sheets.
    • the Council does not have a reactive out of hours team. The investigating officer will lead on appropriate actions to gather evidence that can include the use of noise monitoring equipment and/or witnessing the nuisance.
    • The Council offered out of hours monitoring at times when Mr B indicated regular issues of noise, vibration and odour would occur. On both occasions the offer of a visit was declined due to no issues being apparent.
    • The bodycam was offered as a way of recording the vibrations Mr B complained about. The bodycam was the only option at this point because the alleged time of the nuisance was approximately 2am. If the camera recorded evidence of an issue it would be reviewed to justify allocating two officers to undertake a joint visit during the early hours of the morning.
    • Mr B’s concerns about the bodycam charger have now been addressed and the charger was found to be safe. The Council did not consider it necessary to inform Mr B of this.
    • The Council has not received any complaints from other residents about the issues raised by Mr B.

Analysis

  1. I have completed my investigation. This is because the Council’s decision to close its investigation was not affected by fault. The Council has considered the completed incident record sheets provided by Mr B and has investigated the issues he has reported. I find the Council has made reasonable attempts to assess the alleged nuisance.
  2. Officers have visited Mr B on several occasions in order to try to witness the nuisance he complains about.
  3. The Council has acted reasonably by responding to nuisance reported by Mr B during office hours. The Council also arranged planned visits outside of office hours, in the evening, to try to witness the nuisance. Mr B’s completed incident record sheets recorded frequent incidents of nuisance in the evening, so the Council was entitled to suggest visits at this time. Also, the change in ownership of the neighbouring property and the inconclusive bodycam footage provided by Mr B were relevant factors for the Council to take into account before making its decision.
  4. It is for the Council’s environmental health officers to assess whether a statutory nuisance exists. The officers who investigated Mr B’s complaint did not consider a statutory nuisance was occurring. Mr B may disagree with this decision. But, because the Council’s investigation was not affected by fault, I cannot say that the officers should have made a different decision.
  5. I will now address each of Mr B’s specific complaints.
  6. Mr B says the Council lost the incident record sheets he sent to the Council. Mr B says when he phoned the Council he was told by an officer that the Council could not find his log sheets. Mr B says this was when he reported smoke nuisance to the Council in March 2017. Mr B has provided me with incident record sheets for the period 23 March to 29 March 2017. The Council did not provide these in response to my enquiries. It is not clear what happened to these incident record sheets. But, even if the Council did lose them, I find it highly unlikely this affected the outcome of the Council’s investigation. This is because the incident record sheets cover a very short period of time and the Council was aware of the issues Mr B was reporting.
  7. Mr B complains that the Council did not visit him to assess the nuisance during the night when the nuisance was worst. Based on the information provided by Mr B in his diary sheets the Council was entitled to suggest planned visits during the evening. I recognise that Mr B wanted visits during the early hours. But, the Council has explained that it does not offer a reactive out of hours service. The Council was entitled to consider if there were other ways of monitoring the alleged nuisance before deciding whether to undertake a planned visit in the early hours.
  8. Mr B complains that the Council said it would close the case unless he used the bodycam it offered to record the nuisance. The Council was entitled to offer Mr B the bodycam as a way of trying to monitor the nuisance he complained about.
  9. As identified by the Council, Mr B’s diary sheets refer to regular vibrations during the early hours which resulted in items in his house moving. Such vibrations could be recorded by the bodycam. So, although the smoke nuisance may have stopped, the offer of the bodycam was a reasonable way for the Council to investigate the nuisance Mr B complained about, particularly as the Council had not witnessed a nuisance during any of its visits to the property.
  10. Mr B complains that the Council did not respond to his concerns about the bodycam charger getting hot and that its electrical test had expired. It would have been prudent for the Council to have responded to Mr B’s concerns about the charger. However, Mr B was able to use the bodycam. So, even if the Council was at fault, this did not cause Mr B a significant injustice as a result.
  11. Mr B complains that the Council was wrong to say that nobody else had complained, because another neighbour had also witnessed the nuisance. But, regardless of whether another neighbour witnessed the nuisance or not, the Council’s comments concerned whether another neighbour had complained to the Council. I have not seen any information to dispute the Council’s comments that nobody else had complained to the Council about the issues reported by Mr B. Also, the Council’s records show that it contacted another neighbour, whose comments do not support Mr B’s complaint about nuisance.
  12. Mr B complains that the Council did not tell him the outcome of its investigation after he returned the bodycam. The Council has recognised that it should have told Mr B the outcome of its investigation and I find the Council was at fault on this basis. However, I find Mr B has not suffered a significant injustice as a result. This is because it would have been open to Mr B to have ‘chased’ the Council to find out what was happening with the Council’s investigation, particularly as Mr B says the nuisance has continued.
  13. In response to my draft decision, Mr B said the Council wrongly refused to consider his evidence of the nuisance he complained about. Mr B said he offered to: record the noise; provide a log from his intruder alarm system as evidence of the vibrations; and, provide report sheets from paramedics who attended him and his wife after they suffered breathing problems due to smoke inhalation. I find the Council made reasonable attempts to investigate the issues Mr B complained about. In order to take action against Mr B’s neighbour, the Council would need to witness the nuisance. So, the Council was entitled to focus its resources on visiting Mr B’s property.
  14. I note Mr B says the Council did not provide noise recording equipment. But, the Council’s environmental health officer assessed the noise when the washing machine and dryer were on and did not consider there was a nuisance. So, the officer was entitled to decide that noise recording equipment would not add anything. Also, I note that by April 2017 Mr B told the Council that noise nuisance was no longer the main issue.

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Final decision

  1. The Council’s decision to close its investigation was not affected by fault.

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Investigator's decision on behalf of the Ombudsman

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