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Wiltshire Council (17 011 507)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 28 Mar 2018

The Ombudsman's final decision:

Summary: Mr X complained about the way the Council investigated his complaints of noise from a neighbour’s aviary and the way it reached its decision that the noise was not a statutory nuisance. The Ombudsman has found no evidence of fault in the way the Council investigated these matters.

The complaint

  1. Mr X complained the Council has failed to properly investigate his complaints of noise nuisance from his neighbour’s aviary, which includes a cockerel and hens. He says the noise is a constant disturbance.

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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 the information provided by Mr X and have spoken to him on the telephone. I have considered the Council’s response to my enquiries.
  2. I gave Mr X and the Council the opportunity to comment on a draft of this decision.

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What I found

  1. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to abate such nuisance. In relation to noise, a statutory nuisance is a “noise emitted from premises so as to be prejudicial to health or a nuisance”.
  2. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement taking into account several factors such as the type of activity, locality, time of day, frequency and duration of the noise.
  3. The Council is required to investigate complaints of noise nuisance. It will gather evidence to establish whether or not the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped. Failure to comply with an abatement notice can result in court action and a fine.
  4. The Council has a procedure for investigating complaints of alleged nuisance. It asks complainants to complete diary sheets, recording details of the nuisance and when it occurs and, if appropriate will send a letter to the alleged perpetrator. The Council then assesses the diary contents to decide whether there is a need for further investigation. If it decides to investigate further Council officers will visit the site to witness the nuisance. The Council will also consider whether to install noise monitoring equipment. Based on the evidence collected the officer will decide whether or not there is a statutory nuisance and whether to serve an abatement notice.
  5. Section 82 of the Environmental Protection Act provides for anyone who believes they are suffering a statutory nuisance to take their own private action in the Magistrates Court.

What happened

  1. In October 2016 Mr X complained to the Council about noise from an aviary at a neighbouring property with constant cheeping in daylight hours. Mr X says the noise occurs 365 days of the year and starts at first light in the spring, summer and autumn. The Council contacted Mr X and sent him a letter with diary sheets to complete. It also sent a letter to Mr X’s neighbour Mr Y to advise that it had received a complaint about noise.
  2. Mr X completed the diary sheets between 1 and 14 November. He noted noise every day from around 7am to 5pm. He referred to a cockerel crowing intermittently throughout the day and budgerigars cheeping all day without a break. Mr X complained he could not enjoy sitting in his garden or conservatory and could not leave his windows open.
  3. A Council officer visited the area on 25 November. They noted no significant noise at the time of their visit. The officer visited Mr Y and noted 25 to 30 birds were present. Mr Y advised the numbers would increase in the breeding season and the officer agreed to review the noise in the spring when more birds were present.
  4. The Council officer spoke to Mr X on 19 December who advised the noise was worse in the summer months when daylight hours were longer. The officer said they would continue to assess the noise when they were in the area.
  5. Officers visited the area twice in January 2017. Mr X was not in. They assessed noise from near Mr X and Mr Y’s properties. They noted some chattering but this was not excessive. The decided to review the noise again in the spring.
  6. Mr X contacted the Council in February 2017 to request an update. A Council officer phoned Mr X and advised they would like have information when the number of birds were at the maximum and would also use noise monitoring equipment to assess the noise from his property.
  7. The Council installed noise monitoring equipment at Mr X’s property in April 2017. Mr X also completed diary sheets which noted chirping and a cockerel crowing.
  8. The Council contacted Mr X in May 2017. It advised it had assessed the recordings but concluded the noise from the birds was insufficient to proceed with a noise abatement notice. It advised the noise from the birds was drowned out by wild birds, motor vehicles and a dog barking. A council officer spoke to Mr Y who advised he would look to rehome the cockerel.
  9. Mr X contacted the Council as he was unhappy with the way it had investigated his noise complaint.
  10. Council officers visited Mr Y in May 2017. The notes recorded the officers noted chattering birds from outside the front of Mr X’s property but not sufficient noise to say it was a statutory nuisance. They recorded the number of birds was limited and controlled.
  11. The Council sent Mr X a complaint response on 25 May. It advised an officer had visited on 25 November 2016 . At the time Mr X’s neighbour had 25 to 30 budgerigars, four chickens and two cockerels and agreed to rehome one of the cockerels. The Council found no evidence of statutory nuisance but agreed to revisit in Spring during the breeding season. It installed noise monitoring and having analysed this considered the noise was not a statutory nuisance.
  12. Mr X wrote to the Council in June 2017 as the noise continued to cause him a disturbance. He said the noise was worse in the garden and in the summer with windows open. The sound recording was carried out inside against a wall. The Council wrote to Mr X in response and reiterated it did not considered the noise a statutory nuisance. It advised it was open to Mr X to take his own private action.
  13. Mr X sent the Council his own recordings of the noise and complained the Council took too long to investigate his complaint, did not monitor outside in the garden and had not visited his garden to hear the noise.
  14. The Council considered his complaint at stage two of its complaints procedure. It apologised to Mr X for not keeping him fully up to date with what was happening and for not advising him of site visits in advance so it could access his property. The Council accepted it had not listened to the sound from Mr X’s garden but was satisfied that listening outside his premises was adequate to assess whether or not the noise was a statutory nuisance. It advised the equipment was installed inside as it was not waterproof but is was open to Mr X to have a window open or closed when monitoring took place. It had listened to his own recordings but these were not date or time coded. There was no way of knowing where they were recorded or what volume to use to play them back. The Council therefore considered, although indicative of the aviary noise, they were not reliable enough evidence for the Council to use in court.
  15. The Council advised it had received no complaints from other neighbours in the area.

Findings

  1. Mr X’s amenity may be affected by the noise of his neighbour’s aviary but that, in itself, does not mean the Council can take action. The Council cannot take formal action unless it has robust evidence to show the noise is causing a statutory nuisance. It is for the Council to decide whether noise amounts to statutory nuisance. The Ombudsman’s role is to look at how the Council has reached that view.
  2. The Council has taken appropriate steps, in line with its procedure, to assess the noise from the aviary. The investigation took a longer period of time as the Council placed a hold on the investigation until the breeding season, when the aviary would have the maximum number of birds. This was an appropriate response. The Council did not properly explain this to Mr X and has already apologised to him for this through its complaints procedure.
  3. The Council has reviewed its procedure so, in future, it will not hold complaints open for an extended period of time. Where complaints are seasonally related, it will carry out an initial investigation and act if there is evidence to support the allegation. If there is insufficient evidence, due to the seasonal nature of the noise, it will close the complaint. It will ask the complainant to contact them again if the problem recurs at the beginning of the season in question.
  4. The Council did not visit Mr X’s garden as he was not in when it visited the area. In the stage two response the Council accepted it had not visited Mr X’s property and recommended that officers considered arranging site visits so that complainants were able to be present. However in assessing the noise the Council did visit Mr Y’s property and assessed the noise from Mr Y’s property and from the surrounding area. It also installed monitoring equipment at Mr X’s property. Mr X was unhappy the recording equipment was placed inside his property. However it was entirely under his control as to when he activated the equipment to give an indication of the noise disturbance, and whether or not to have his windows open at that time. The Council analysed the recordings and did not find sufficient evidence of a statutory nuisance. That is a decision it was entitled to take. In addition the Council has not received any complaints from other neighbouring properties regarding the noise.
  5. Mr X continues to be disturbed by the noise of the birds. The Council has advised it would be willing to monitor the noise from Mr X’s garden in April to assess the noise in the new breeding season. The Council has said it will attend and listen directly from the garden, with either a nuisance monitoring kit or sound level meter to measure noise over an hour period. It will assess the results to determine if the noise causes a statutory nuisance.
  6. Mr X has provided his own recordings of the noise. The Council has listened to these but as it cannot show where or when these were recorded it has advised Mr X they are not reliable evidence. There is no fault in the Council’s decision.
  7. Mr X says his statutory rights to enjoy his property have been put second to his neighbours right to breed birds as a hobby. The Council’s role was to assess whether or not the noise from the aviary was causing a statutory nuisance and that is what it did. Mr X does not agree with the officer’s view but that does not mean there is fault in the process. It remains open to Mr X to consider taking his own private action through the Magistrates Court.

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Final decision

  1. I have completed my investigation. I have found no evidence of fault in the way the Council decided noise from a neighbour’s aviary was not a statutory nuisance.

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Investigator's decision on behalf of the Ombudsman

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