The Ombudsman's final decision:
Summary: Mrs X complains the Council has not taken effective action after she complained about noise from a community centre near her home, which she says has affected her health. The Council is at fault for not keeping adequate records of her reports relating to the nursery and how it has considered them. It is not at fault for the way it considered noise complaints about the main building. The Council should apologise to Mrs X for its failure to keep records.
- Mrs X complains she has reported problems with noise relating to a community centre near her property over many years but the Council has not taking effective action to stop this. She says the community centre comprises two buildings, one of which operates as a nursery (the nursery building) Monday to Friday from about 7 a.m. until 6 p.m. The other building (the main building) is used for classes, parties and events, mostly in the evenings and at weekends.
- She says the noise levels have affected her health and contributed to her son leaving home much earlier than he would otherwise have done because he was unable to work from home due to the noise levels from the nursery.
- 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)
- 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)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- Mrs X says she has consistently reported concerns about noise to the Council for about 20 years. We cannot normally investigate events when it is more than 12 months since the complainant first knew something had gone wrong. When events were a long time ago it is more difficult to establish the facts with reasonable confidence. It may also be difficult to achieve a meaningful remedy after a lapse of time. With this in mind, I have decided to limit my investigation to events from March 2015. This is the earliest report mentioned in the Council’s Stage 2 complaint response. Therefore, I have not considered any reports Mrs X made before March 2015.
- Mrs X made a formal complaint to the Council in March 2018 and the Council responded at Stage 2 of its complaints process in July 2018. Mrs X complained to us within 12 months of being told she could do so.
- 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)
How I considered this complaint
- I spoke to Mrs X about the complaint and considered the information she provided.
- I considered the Council’s replies to my enquiries.
- I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
- Planning permission is required for the development of land, including its material change of use.
- Where there is a change of use without planning permission the council may consider enforcement action. The council cannot usually take enforcement action where the change of use occurred more than 10 years before.
- Councils must investigate complaints about noise that could be a statutory nuisance. The council must decide if the nuisance substantially interferes with the person’s enjoyment of their property or if it is likely to injure their health. When deciding this the council should consider whether and how an ordinary person would be affected by the noise.
- If the council decides the noise amounts to a statutory nuisance it will usually try to resolve the matter informally. If it is unable to do so, it should consider enforcement action.
- Mrs X moved into her property in the mid 1990s. Close to her property is a community centre that comprises two buildings, the main building and the nursery building.
- When she first moved there, the nursery building was used as a play group one morning each week. Over time the use increased and in recent years it has operated as a full-time nursery.
- Mrs X says she has complained to the Council about noise from the nursery building many times over the years. She says each time she complained she was told there are no records of previous complaints and she had to start all over again with a new officer. Mrs X has not kept records of her complaints to the Council.
- The council says Mrs X spoke to an officer in its anti-social behaviour team about noise from the nursery in May 2017. The officer reported her concerns to the Council’s Environmental Protection Unit (EPU). The EPU no longer exists and the Council has not kept any records of it. The anti-social behaviour team has no record that the EPU took enforcement action. The Council has no records of any other complaints from Mrs X about noise from the nursery.
- In its response to Mrs X’s complaint on 25 May 2018 the Council said officers had considered carefully what action it could take. It said it did not consider it could instruct the nursery to stop using a particular playground close to Mrs X’s property. Therefore, it considered it was unlikely it could take enforcement action.
The Council says the building has planning permission for assembly and leisure use and the owner should have sought permission for the change of use to allow operation as a nursery. The owner did not do so and the Council has provided evidence the nursery was operating from at least July 2008. As this is more than 10 years ago the Council cannot now take enforcement action relating to the change of use.
- In its replies to my enquiries the Council said an officer had visited the site and the nursery building was empty and not in use. Mrs X understood that a new nursery will be opening in the premises.
- Mrs X says she has repeatedly complained to the Council about noise from the main building. This is used for classes in the evenings and for bigger events at the weekend, such as parties and church meetings. Mrs X has not kept records of when she complained and what she complained about so I cannot say with certainty how many times she complained in the period I am investigating.
- Mrs X says the Council advised her to contact its out-of-hours team so an officer could witness the noise but this service starts at 7 pm so children’s parties are often finished before she can call. She says at other times the noise had stopped by the time the officers attended. She says sometimes officers attended the main building and noise levels were reduced but then increased again after the officer left.
- The Council says Mrs X has reported problems with noise from evening events six times between March 2015 and July 2018. In March 2015, its out-of-hours team attended and decided it did not need to take action. In December 2015, the out-of-hours team attended again but decided there was no nuisance at the time of the visit. In May 2017, out-of-hours officers visited Mrs X and witnessed a statutory noise nuisance from her property. However, by the time they attended the main building the noise had stopped and the organisers said the event had finished. In September 2017, out-of-hours officers attended and asked party organisers to turn the music down. In July 2018, following involvement by a local Councillor on behalf of Mrs X, the Council made several attempts to contact the manager at the main building but could not do so. The Council sent an advisory warning letter to the manager.
- The Council has no record of being asked to install noise monitoring equipment at Mrs X’s property or agreeing to do so.
- The Council does not consider six reports over three years suggests a significant problem with noise from the main building. Therefore, it has responded to each incident separately and taken “reasonable and proportionate” action each time. In its complaint response, it advised Mrs X to continue calling its out-of-hours service so an officer could witness the noise and decide what action was appropriate.
- In its replies to my enquiries, the Council says an officer visited the site and the main building was empty and not in use.
- Mrs X says she has complained many times about noise from the nursery. She says she was told no records existed so she had to keep starting again with a new officer. I have no reason to doubt this. The Council has one record of a complaint from Mrs X about noise from the nursery but has no record of what action its EPU considered or took. Council records therefore appear to be incomplete.
- Restructuring is not an excuse for failure to keep important records of this kind, particularly for services where accumulation of evidence over time is important. This is fault. This fault means I cannot reach any conclusions about how the Council handled the reports Mrs X made about noise from the nursery and Mrs X has been put to time and trouble making repeated complaints to the Council.
- Mrs X says she has complained about noise from the nursery over many years. The Council has provided no evidence that it considered whether there was a breach of planning control before the formal complaint in 2018. It is not clear why the Council did not consider this before 2018 but the lack of records means I have insufficient evidence to conclude the Council is at fault for not considering this sooner. Even if it had considered this within 10 years of the nursery starting to operate I cannot say whether it would have taken enforcement action or what the outcome of that would have been.
- The Council said it could not restrict the nursery from using its garden. The Council was entitled to reach this view having considered whether the nursery was generating a statutory noise nuisance.
- There is no evidence of fault in the way the Council has considered how it can exercise its powers in 2018.
- The Council considered reports from Mrs X about noise from the main building. Its officers attended to assess whether the noise amounted to a statutory nuisance.
- The Council says there were six reports of noise from the main building in the period under investigation. It responded to each report and officers took the action they considered was “reasonable and proportionate” on each occasion.
- The Council does not have to consider formal action unless it decides the noise amounts to a statutory nuisance. Councils generally try to resolve the problem informally before taking formal action. The Council only decided the noise Mrs X complained about amounted to a statutory nuisance on one occasion. On that occasion, its officers spoke to the event organiser to resolve the problem informally but the noise had stopped and the operator said the event had finished.
- The Council concluded the number of reports do not suggest a significant problem with the main building.
- There is no evidence of fault in the way the Council has considered the noise nuisance complaints relating to the main building.
- The Council will, within one month of the date of the final decision, apologise to Mrs X for failing to maintain complete records of all the noise complaints she has made about the nursery and how it has considered them.
- I have completed my investigation. I have found fault leading to personal injustice and have recommended action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman