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Wokingham Borough Council (17 004 901)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 21 Mar 2018

The Ombudsman's final decision:

Summary: The Council took suitable and adequate steps to investigate Mr X’s reports of a continuing statutory nuisance from a business near his home.

The complaint

  1. Mr X says Wokingham Borough Council (‘the Council’) failed to properly consider whether a business near his home adequately mitigated the statutory nuisance it was causing and so complied with the Council’s abatement notice.
  2. Mr X says the statutory nuisance is continuing and takes place for at least 12 hours a week from early morning and through the evening, which unreasonably interferes with his family’s enjoyment of their home. Mr X wants the Council to take further action to ensure the business complies with the abatement notice.

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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. 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 X’s written complaint and supporting papers;
  • talked to Mr X about the complaint;
  • shared with the Council information sent by Mr X about his sound consultant’s investigation;
  • asked for and considered the Council’s comments and supporting papers about the complaint;
  • shared the Council’s response to the complaint with Mr X, except for information about other people; and
  • given Mr X and the Cl an opportunity to comment on a draft of this statement and considered their responses.

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What I found

  1. Councils have a legal duty to “take such steps as are reasonably practicable to investigate” complaints of noise nuisance. But, for councils to take action against businesses or people, they need evidence of noise amounting to a ‘statutory nuisance’. To be a statutory nuisance, noise must unreasonably and substantially interfere with the use or enjoyment of a home or, injure health or be likely to injure health.
  2. There is no fixed point at which noise becomes a statutory nuisance. Councils will rely on professional environmental health officers to gather and assess evidence of noise and decide if a statutory nuisance exists. To do this, officers may, for example, ask the person complaining of nuisance to complete and return diary sheets detailing the noise. Officers may also set up recording equipment in the complainant’s home. And, officers will normally visit the complainant’s home and/or nearby property to identify any noise and its source. In assessing the noise, officers will take account of several points such as what is causing the noise, the local area, time of day, and frequency and duration of the noise. Councils must also consider how the noise affects the average person, who may not share the specific circumstances of the complainant. In practice, this means councils have some discretion deciding whether noise is a statutory nuisance.
  3. If a council finds noise is a statutory nuisance, it will serve an “abatement notice” to stop the nuisance. The person receiving the notice has a legal right to appeal against the notice. But, if there is no appeal or the appeal is unsuccessful, it is an offence to fail to comply with the notice, which may lead to court action and a fine.
  4. People affected by noise may take legal action themselves for noise nuisance.
  5. The Council has policies and procedures for handling complaints about nuisance, including noise, from businesses. The policies include that: “officers use their professional skills to monitor and evaluate complaints regarding the environmental impact of non-residential premises and act (in accordance with the Enforcement Policy) on any identified problems”. In dealing with complaints about a breach of an abatement notice, the Council’s procedures say key points to consider are:
  • “length of time since the last reported incident, and
  • quality of evidence obtained”.

And, “to progress a prosecution…the evidence should be sufficient to prove that the notice had been breached”.

What happened

  1. Mr X’s home is close to commercial premises (‘the Business’). Mr X told the Council about noise and vibration from the Business seriously affecting his home and family life.
  2. The Council’s investigation, by an environmental health officer (‘Officer 1’), included contact with the Business and, visits to and the use of noise recording equipment in Mr X’s home. The Council served the Business with an Abatement Notice (‘the Notice’). The Notice said the Business must “abate the nuisance”.
  3. The Council says, as the Business had to ‘abate the nuisance’, it would not necessarily inspect what work it did to comply with the Notice. Rather, it investigated whether the Business had abated the nuisance. The Council says Officer 1 saw the “structural change” made by the Business. Officer 1 also received information from the Business about other steps it took to ‘abate the nuisance’. And, the Council used, and considered the results of, noise recording equipment in Mr X’s home. The Council was satisfied the Business had complied with the Notice.
  4. Mr X accepts the Notice led to less noise and disturbance and tried to resolve his remaining concerns with the Business before going back to the Council. Mr X told the Council, “despite significant improvements” he and his family were “still experiencing inconvenience on a regular basis” that was a nuisance. In response, Officer 1 made five visits to Mr X’s home. The Council says these visits coincide with the days/times Mr X reported the Business as causing most disruption from noise and vibration.
  5. The Council’s written record of the five visits include Officer 1 hearing:
  • noise ‘but nothing that could be classed as excessive or substantial’;
  • ‘one or two’ incidents “but nothing that [Officer 1] would class as a nuisance.” (Mr X agrees there was no nuisance but says noise from the Business is “louder normally”);
  • ‘low level’ noise and up to 12 incidents of other noise from the Business;
  • ‘low level, intermittent noise’; and
  • noise over an hour of differing levels and up to eight incidents of other noise.
  1. Another officer accompanied Officer 1 on the first of the five visits. Officer 1 also visited the Business after the second, fourth and fifth visits. The Business had a new owner and the manager knew about the Notice. After meeting with the manager, Officer 1 says the Business agreed to try out his suggestion to see if that further reduced noise. (The Council says it did not follow this up with the Business as it was a ‘suggestion’ and not needed to comply with the Notice.)
  2. Officer 1 told Mr X, while use of the Business was ‘annoying and irritating’, it was not a statutory nuisance. The Council closed its case.
  3. Mr X complained. In responding to the complaint, the Council’s position, in summary, is:
  • the structure and design of the building occupied by Mr X’s home and the Business means “there will, from time to time, be audible noise” in Mr X’s home;
  • to accept the Business causes “annoyance” and “nuisance” for Mr X and his family;
  • there is no defined noise level at which something becomes a statutory nuisance;
  • the purpose of Officer 1’s five visits was to assess any background noise and the level of noise from the Business and the impact of that level of noise;
  • that is has taken account of “the noise level (volume and pitch), time of day, its frequency, duration” and the relationship of Mr X’s home to the Business; and
  • the annoyance and nuisance is “not at a level or frequency to cause a statutory nuisance”.
  1. Mr X sought help from a sound consultant. The consultant visited Mr X’s home and recorded use of the Business. The consultant says the visit showed “intrusive amplified low frequency [noise] audible in [Mr X’s home].” The consultant wrote to the Council saying objective assessment and objective measurements showed partial compliance with the Notice.
  2. The Council’s reply to Mr X’s consultant was that, without a substantive change in the Business’ use, it would not reinvestigate.
  3. In coming to the Ombudsman, Mr X says, in summary:
  • Officer 1’s view, which other officers simply confirmed, is ‘subjective’ and reached without using noise equipment;
  • it is “perplexing” to use his own time and money to involve an independent sound consultant to resolve the problem;
  • the consultant’s objective data and view is the Business has not complied with the Notice; and
  • the Council is at fault in refusing to re-investigate his concerns despite the consultant’s objective information.
  1. In responding to the Ombudsman, the Council says:
  • there was some delay in its handling of Mr X’s concerns but it did not ‘fundamentally deviate’ from its usual procedures;
  • its decision was ‘subjective’ being an officer opinion but, officers’ assessments are not subjective;
  • officers take account of their knowledge and experience, case law, and all other available factors when assessing nuisance;
  • noise measurements are “useful” but, nuisance assessments should not use noise levels alone;
  • compared to pre-Notice visits, officers say they can ‘hardly hear’ the noise in Mr X’s home; and
  • the impact of the Business is “similar to occasional impact noise you could expect when living in a flat, and is a predictable noise occurring only in the hours of operation.”

(Mr X disagrees with the Council’s views and says it is unfair to compare his situation with a “typical” flat.)

  1. The Council has not formally responded to Mr X’s consultant’s report but says it ‘stands by the findings of its previous investigations’. The Council is willing to meet with Mr X and his consultant at Mr X’s home when the Business causes most disruption to Mr X and his family.

Consideration

  1. I recognise the strong and deep effect use of the Business has on Mr X and his family. The Council accepts that Mr X and his family do, and will continue to, experience noise and disturbance from use of the Business. The issue in dispute between Mr X and the Council is whether that noise and disturbance continues to cause a ‘statutory nuisance’. The Council’s view is the Business has complied with the Notice and the remaining noise and disturbance is not a statutory nuisance. Mr X’s view is the Business continues to cause a statutory nuisance and the Council should take further action to make it comply with the Notice.
  2. It is not for me to decide whether noise and other disturbance coming from the Business is a statutory nuisance. My role is to consider whether, in responding to Mr X’s reports of nuisance, after serving the Notice, the Council acted with fault. Without evidence of such fault, I cannot question the Council’s decision simply because Mr X disagrees with it (see paragraph 3 of this statement).
  3. I have considered the Council’s written records of its post Notice investigation of Mr X’s nuisance reports. The Council wrote to and visited both parties and, twice used noise recording equipment in Mr X’s home after serving the Notice. These are steps I would expect a council to take to investigate compliance with, or a breach of, an abatement notice.
  4. Mr X does not accept the Council’s ‘subjective’ view about the nuisance being abated. Mr X points to the Council’s failure to use recording equipment during Officer 1’s last five visits, which would provide ‘objective’ evidence of the nuisance. I have carefully considered the point. And yet, the Council is not obliged to use recording equipment, although, it did so both before and after issuing the Notice. Officer 1 also dealt with Mr X’s nuisance reports before and after service of the Notice. Officer 1 could therefore appreciate, on visiting Mr X, what difference the Notice made to noise/nuisance affecting Mr X’s home. While recognising the point Mr X makes, on balance, I do not find the Council at fault in not using recording equipment during the last five visits to his home.
  5. Overall and on balance, I find the Council’s investigation, of whether the Business had abated the statutory nuisance, was reasonable and proportionate. It is the Council that has ‘to be satisfied’ there is a statutory nuisance. Unfortunately for Mr X, despite the Council taking suitable steps to investigate, it was not satisfied a statutory nuisance continued. I find no fault here and so have no grounds to question the Council’s decision (see paragraph 3).
  6. The recordings made by Mr X’s sound consultant did not exist until after the Council closed Mr X’s nuisance case and complaint. The Council could not therefore take account of those recordings in either closing Mr X’s case or responding to his complaint. Mr X says the Council should re-investigate the Business now it is aware of the ‘objective’ recordings ‘objectively’ assessed by the sound consultant. The Council stands by the findings of its investigation and says, without a change in the use of the Business, it will not further investigate Mr X’s concerns.
  7. I recognise Mr X finds the Council’s response unacceptable. And yet, I have found no fault in how the Council reached its decision, which included consideration of post Notice recordings, to close Mr X’s case. On balance, I do not find the Council falls below acceptable administrative standards in refusing to investigate further unless there is a change in use of the Business. (I have seen no evidence that use of the Business has changed since Officer 1’s last five visits and the Council’s closure of Mr X’s nuisance case.)
  8. In reaching this view, I take account of the Council’s willingness to meet with Mr X and the sound consultant (see paragraph 23). The Council also says it “may be able to assist” if Mr X decides to take legal action for nuisance (see paragraph 9). Without evidence of fault by the Council, I can do no more for Mr X.

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Final decision

  1. I completed my investigation finding no fault in how the Council reached its decision to close Mr X’s nuisance case.

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Investigator's decision on behalf of the Ombudsman

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