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Rochdale Metropolitan Borough Council (17 009 905)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 28 Mar 2018

The Ombudsman's final decision:

Summary: The Council was at fault in the way it handled complaints of noise from an industrial estate. It gave wrong advice about making complaints, delayed responding to reports of a new noise issue and failed to respond to a request for information. The Council will apologise to Mr and Mrs X and confirm how it will investigate any future complaints about noise from the industrial estate.

The complaint

  1. Mr & Mrs X complain about the Council’s failure to investigate their complaints of excessive noise from the light industrial premises next to their home.

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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 information from:
    • previous investigations carried out by the Ombudsman into complaints from
      Mr X about the same issues;
    • Mr and Mrs X’s complaint;
    • a telephone conversation with Mrs X; and
    • the Council’s response to my enquiries
  2. I have given Mr and Mrs X and the Council the opportunity to comment on a draft of this decision.

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What I found

  1. Mr and Mrs X bought their home 21 years ago. The house has a side boundary with a light industrial estate. Mr and Mrs X say when they moved in, the area next to them was a yard used for storage for a business at the other end of the site. The site is now a light industrial estate and a number of different businesses operate from it. The Council has records of complaints from Mr and Mrs X over the last 10 years about what they consider to be excessive noise and vibrations from the site.
  2. The Ombudsman investigated complaints by Mr X about noise from the businesses on the industrial estate in 2012 and 2015. The noise was from general operations, machinery and yard activities at three industrial units on the estate. The Ombudsman did not find fault with the Council’s actions and I am not investigating the same issues again.
  3. Mr and Mrs X say noise from the site next door continues to disturb them. They continued to contact the Council after the Ombudsman’s decision in March 2015.
  4. Officer A leads the Noise Team in the Council’s Public Protection Service. He wrote to Mr X in March 2016. He said the Council had investigated Mr X’s previous noise complaints fully and had decided there was no statutory nuisance. He referred to the Ombudsman’s 2015 decision. He said the Council would not proceed with Mr X’s noise complaint.
  5. My current investigation is into the Council’s actions during the year leading up to Mr and Mrs X’s current complaint to the Ombudsman, from September 2016 to September 2017.

The Council’s procedure for dealing with noise complaints

  1. Sections 79 and 80 of the Environmental Protection Act 1990 says:
    • councils have a duty to respond to complaints of statutory nuisance by taking such steps as are reasonably practicable to investigate them;
    • councils have a duty to take action if they consider there is a statutory nuisance;
    • a statutory nuisance includes noise “emitted from premises so as to be prejudicial to health or a nuisance”.
  2. To decide whether a noise is a statutory nuisance a council will consider factors such as the level of noise, its length, frequency, timing and location. The Council’s procedure for assessing complaints of noise nuisance includes the option of asking a complainant to complete diary sheets. These detail what sort of noise is the problem, where it happens and when it happens. The Council uses diary sheets to assess the likelihood of a noise being a statutory nuisance.

Events September 2016 – September 2017

September 2016

  1. Mrs X says she rang the Council about noise from building a wooden shed in the yard. She says the Council said it would send a diary sheet for completion but they did not receive one. Mr X chased this up and Officer A replied. He said the Council’s position remained the same as set out in his letter of March 2016.
  2. Mr X contacted Officer A again, this time about a burglar alarm going off intermittently on the site next door. Officer A wrote to the business concerned. He asked that it check its alarm system. He said if he continued to get complaints about the alarm he would have to investigate to establish if there was a statutory nuisance.

October 2016

  1. Mr X emailed Officer A in early October 2016. He said the business next door had been using a very noisy old forklift truck and the alarm was still going off intermittently. The Council has provided no evidence of a response to this.

February 2017

  1. Mrs X says she rang the Council about noise from work being done to scrap vehicles. Mr X emailed Public Protection to reinforce the complaint. He said the activities were noisy and the business should have a licence to do such work. He also asked the Council to confirm the legal opening times of the yard and the days of the week it was allowed to work.
  2. Officer A replied. He said he was passing the complaint about scrap vehicles to the Council’s Licensing Service for consideration. He was passing the issue of working hours and days to the Planning Department to respond to Mr X direct. He attached a diary sheet and asked Mr X to complete it about work to scrap vehicles. He said the Council would assess the detail Mr X gave to decide if it needed to investigate further.
  3. The Council’s Licensing Team investigated the scrap vehicle activity and decided it did not need to be registered. The Council has no records of receiving diary sheets from Mr X referring to scrap vehicle activity. The Council says it is satisfied Planning enforcement officers have told Mr and Mrs X in the past that there are no conditions for hours of operation on the industrial estate. However it has provided no evidence that the Planning Department responded to Mr X’s question in February 2017.

End June/early July 2017

  1. Mrs X says she called the Council about noise from next door in June 2017. Mr X followed this up with an email to Public Protection towards the end of June. The email did not specify what type of noise Mr and Mrs X were complaining about. It said the noise was from Company B, the business on the industrial estate with its premises closest to Mr and Mrs X’s home.
  2. Officer A replied to Mr X at the beginning of July. He referred to completed diary sheets Mr X had copied to the Council by email. Officer A said the recent diary sheets showed two potentially new sources of noise that the Council may be able to investigate. One was the use of an asphalt wagon and the other was the continued sounding of a burglar alarm. He said Mr X should keep a diary for both noises and return them to the Council to consider. Officer A also said, “Please do not send any further information relating to the activity of [Company B].”
  3. Mr and Mrs X did not return any diary sheets.

July/August 2017

  1. Mr and Mrs X commissioned a noise impact assessment report from a firm of consultants in acoustics, noise and vibration. The consultants used evidence collected in late July/early August to produce a report in mid August. The consultants’ report said their assessment indicated a significant adverse impact to Mr and Mrs X from noise relating to activities within the yard and units next to their property.
  2. Mrs X says she asked if the Council wanted to see the report but was told it would not be of any use. So far the Council has not seen the report. The Council disagrees that it would advise such a report would not be of any use. The Council says it would like to see any such report.

September 2017

  1. Mr and Mrs X contacted the Council again about noise from work to scrap cars. Officer A replied and confirmed the way forward was as he had set out in July. He said Mr and Mrs X should complete diary sheets for the Council to consider.
  2. Mr and Mrs X did not return any diary sheets.

Other comments from the Council

  1. The Council accepts Mr and Mrs X live in a residential street but says, as their home is next to an industrial site, they must expect some noise from the industrial units. During the period under investigation the Council has not received noise complaints from anyone else.
  2. The Council says it will investigate new issues not relating to the type of noise investigated previously.
  3. The Council has also told Mr and Mrs X of their right to complain to the magistrates court under Section 82 of the Environmental Protection Act 1990 or to take their own civil action.

Planning background

  1. The Council considers the current use of the industrial units on the site is consistent with previous uses.
  2. The Council has provided copies of the seven planning permissions granted on the site. It granted six before Mr and Mrs X moved to their current home. None have conditions restricting hours of operation or activities on the site. The Council says it has no grounds to take enforcement action in relation to any of the units on planning grounds.

Findings

  1. The Council is not at fault in refusing to investigate the same noise complaints it has already investigated where it has found no statutory nuisance. However it needs to be open to the possibility of statutory nuisance being caused by an increase in the type of activities already investigated or by new activities. In
    July 2017 the Council advised Mr and Mrs X not to send any further information relating to one of the businesses on the industrial estate. By saying this, the Council appeared to discount the possibility of an increase in the type of activities already investigated or by the business starting new activities. This advice was fault which led Mr and Mrs X to believe the Council was not open to the possibility of changes occurring at the site.
  2. The Council delayed responding to Mr and Mrs X about an alarm that went off intermittently. The Council responded quickly to Mr and Mrs X’s first complaints in September 2016. But it did not respond further when Mr X said the alarm was still going off intermittently. In June 2017 the Council told Mr X the continued sounding of an alarm was something it could investigate and advised him to keep a diary of the problem. That advice also referred to a new issue, the noise from an asphalt wagon. The Council should have given the advice for the alarm noise in October 2016. However, after receiving the advice in June 2017
    Mr and Mrs X did not send in diary sheets as requested so I cannot assume they would have done so earlier. As a result, I do not consider Mr and Mrs X suffered injustice because of the Council’s delay.
  3. In February 2017 Officer A told Mr and Mrs X he had asked the Planning Department to respond to them direct about the permitted working hours on the site next door. There is no record of such a response. That is fault. During this investigation the Council has confirmed there are no conditions restricting the hours of operation or activities on the site. Mr and Mrs X now have the information they requested.
  4. If Mr and Mrs X want the Council to consider the noise impact assessment report they commissioned they need to send it to the Council. The Council can then assess whether the report provides any new information it should take into account in considering noise at the industrial estate as a potential statutory nuisance.
  5. Mr and Mrs X have not provided many of the diary sheets the Council has asked for. The Council is entitled not to investigate further if Mr and Mrs X do not provide this evidence.

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Agreed action

  1. The Council has agreed that within four weeks of a final decision it will write to
    Mr and Mrs X to:
    • apologise for its faulty advice about reporting noise from one of the businesses on the industrial estate, its delay responding to the issue of an alarm and for failing to respond about permitted working hours;
    • confirm how it will investigate in the future if it receives further complaints about noise nuisance from the industrial estate. This will include reference to how the Council will consider whether the issues raised are new and what evidence the Council expects Mr and Mrs X to provide to enable it to investigate; and
    • confirm it would like to see Mr and Mrs X's noise impact assessment report and, if Mr and Mrs X send it in, will respond to them in writing to say whether or how it affects the Council's assessment of their noise complaints.

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Final decision

  1. I have now completed my investigation because the Council’s agreed action will remedy the injustice caused to Mr and Mrs X by its fault.

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Investigator's decision on behalf of the Ombudsman

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