The Ombudsman's final decision:
Summary: Mr C complains the Council failed to deal with his reports of noise nuisance from underground trains. Mr C says he suffers from excessive noise which has effected his mental health. The Ombudsman has found no evidence of fault by the Council.
- The complainant, whom I shall refer to as Mr C, complains the Council has failed to investigate properly and take effective action in response to his reports of noise nuisance from underground trains. Mr C says because of the Council's fault he suffers from excessive noise which has had a harmful effect on his mental health.
The Ombudsman’s role and powers
- 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 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)
- The Ombudsman cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider (Local Government Act 1974, paragraph 5A schedule 5, as amended).
- 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 read the papers provided by Mr C. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.
What I found
- A complaint about a council’s failure to take action in its role as a social landlord will normally fall to the Housing Ombudsman (HO) to investigate and Mr C received a decision from the HO in June 2018. I have not investigated the landlord related actions of the Council (including the water leak repairs mentioned below) because of the restriction set out at paragraph 4.
- However, complaints that there is statutory noise nuisance under the Environmental Protection Act 1990 will usually be dealt with by a council’s environmental health service. Any complaints about these environmental health actions fall within our jurisdiction. This means the LGSCO can look at how the Council considered Mr C’s reports of noise nuisance in terms of its duties under the Environmental Protection Act 1990.
Background and legislation
- The Environmental Protection Act 1990 provides that Local Authorities must take such steps as are reasonably practicable to investigate where a complaint of a statutory nuisance is made. For a noise to count as a 'statutory nuisance' it must:
- unreasonably and substantially interfere with the use or enjoyment of a home or other premises
- injure health or be likely to injure health
- The statutory nuisance must be witnessed by a suitably qualified officer and they will come to an independent judgement. The process of deciding what level of noise constitutes a nuisance can be subjective. The level of noise, its length, timing and location may be considered in deciding whether a nuisance has occurred. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
- The Council’s Environmental Pollution, Policy and Projects team received a referral from the Housing team on 13 July 2016 about Mr C experiencing disturbance from train noise. The Council arranged a noise survey on 4 August.
- The Council completed the noise survey in Mr C’s bedroom as this was his main area of concern. The Council measured 10 trains passing and noted the background and ambient sound levels were relatively low and the low rumble of trains passing was audible in Mr C’s property. The Council has provided details of the noise survey findings and relevant guidance used to assess noise. These included the World Health Organisation (WHO) Night Noise Guidelines which suggest LAmax 42 dB(A) as the best current estimate of the threshold for being woken by transport noise. The Council measured the mean and median LAmax as 33 dB(A) with the highest reading as 35 dB(A).
- The Council’s Anti-Social Behaviour (ASB) team received a telephone report on 7 October 2017 from Mr C about train noise. The team returned Mr C’s call but he did not want a visit to his property. The team visited the local area and witnessed no noise.
- Mr C raised an issue about repairs to a water leak making the noise worse in June 2018.
- The Council arranged a further noise survey at Mr C’s property on 19 June to see if there had been any changes to the noise from trains since the previous noise survey. This second survey found similar readings to the previous survey with both the mean and median LAmax as 32 dB(A) with the highest reading as 38 dB(A).
- I am satisfied the Council responded to Mr C’s reports of disturbance from train noise and took appropriate action. The Council visited Mr C’s property and completed two separate noise surveys with similar results. All readings were below WHO guidelines and the Council has not witnessed noise which would constitute a statutory nuisance under the Environmental Protection Act 1990. The Council has advised Mr C of the outcome of its investigations and that it can take no further action.
- I have completed my investigation as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman