Walsall Metropolitan Borough Council (18 008 112)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 23 Nov 2018

The Ombudsman's final decision:

Summary: Miss Z complains the Council failed to take action to stop noise nuisance from a pub. Miss Z made intermittent reports mainly during the warmer months. The Council visited to observe the noise but then used its professional judgement to decide it was not a statutory nuisance.

The complaint

  1. Miss Z complains the Council has failed to take action to stop noise nuisance from a nearby pub.
  2. Miss Z says the noise nuisance stops her enjoying her home and garden and impacts on her health and well being.

What I have investigated

  1. Miss Z has been complaining about noise nuisance for several years. This investigation concerns noise reports from January 2017 onwards and the Council’s response to them.

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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. As part of the investigation, I have:
    • considered the complaint and the documents provided by the complainant;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with the complainant;
    • sent my draft decision to both the Council and the complainant and taken account of their comments before making my final decision.

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What I found

  1. Miss Z lives in a property on an estate built in the 1980’s. As part of the estate a pub and shopping area was built. This is located to the rear of Miss Z’s property and is separated by a main road.
  2. Miss Z says the position of her house, and that of her neighbour, Miss X, mean they are most affected by the noise from the pub. Both Miss X and Miss Z have made regular complaints about noise nuisance from the pub.
  3. In March 2017 Miss Z sent in a log sheet to the Council. This detailed one incident of noise on 26 March. Miss X said she could hear loud music between 12 30 pm and 7 55 pm.
  4. Miss X made a further report of noise on 2 April. An officer working out of normal office hours contacted Miss X but she reported the noise had stopped.
  5. Miss X complained again on 7 April. On this occasion officers visited and reported some noise could be heard but not at a level to constitute a statutory nuisance.
  6. Officers visited the pub in May 2017 and noted noise from music. Officers reminded the manage to keep doors closed as required by the licence. The Council wrote to the pub on 30 and 31 May explaining it had witnessed noise and reminding it of the requirements of the licence. It said action would be taken if it witnessed a statutory nuisance.
  7. Miss Z sent another log sheet on 17 June. She said she noticed the music when a neighbour stopped using a jet washer. On this day officers visited Miss X but noted the music had stopped by the time they arrived. Officers went into Miss X’s garden and heard children and muffled music but did not witness a statutory nuisance. They also visited Miss Z’s property before going to the pub to witness the noise from the car park. They heard nothing you wouldn’t expect in a pub garden.
  8. In July, officers prioritised the location so any noise reports could be responded to more quickly. Miss Z made complaints on 5 and 12 July about noise from a quiz night. The following week officers visited but did not observe any excessive noise or other nuisance during the quiz night.
  9. In August, Miss X and Miss Z both reported noise from children shouting and playing football. Officers called back but the noise had stopped. Miss X made a further complaint in October about music keeping her awake. However her log sheet also states she does not know what time the music stopped as she fell asleep.
  10. In November 2017, officers visited other properties in the same street as Miss X and Miss Z, as well as properties in a neighbouring street. While several residents did not answer, those who did said there were no problems with excessive noise or nuisance from the pub.
  11. Miss Z did not make any further complaints to the Council until January 2018. On 22 January she complained about cars and anti social behaviour in the car park.
  12. The next complaint Miss Z made to the Council was in May 2018 and was about loud music. Further complaints by Miss Z in May, June and July were about noise from shouting and children playing football.
  13. The Council visited the pub on 23 June to observe the noise. Officers found people talking in the garden but no excessive noise or nuisance. Officers visited again on 28 July but did not witness any noise.
  14. The information provided by the Council in response to my enquiries indicated no complaints have been made by Miss X or Miss Z since August 2018.

Analysis

  1. Miss Z complains the Council has failed to take action to stop noise nuisance from a nearby pub. As explained, I am aware the problems have been ongoing for a number of years but I am only considering the period from January 2017.
  2. The Council is required to take action when it considers a noise nuisance is so excessive it constitutes a statutory nuisance. It then must issue an abatement notice and can consider prosecution if the noise continues. The law does not set down a threshold at which a noise becomes a statutory nuisance. For a noise to be a statutory nuisance it must:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
    • Injure health or be likely to injure health.
  3. An environmental health officer should witness the nuisance and then use their professional judgement to determine if it is a statutory nuisance. The level of the noise, its length, timing and location can be taken into account when deciding if it meets the level of a statutory nuisance.
  4. In this case, Miss Z has made reports of noise, mainly music, from a local pub. The evidence provided shows the reports are intermittent in nature but generally take place during the warmer months of the year.
  5. The information provided shows Miss Z has completed a log sheet and sent it to the Council after she experiences noise rather than keeping a daily log of activities and the noise caused. The Council also pro-actively carried out visits. Since January 2017 the Council has visited Miss Z, Miss X and the pub on at least five occasions. While it has noted noise, it has never witnessed a statutory nuisance. I note on one occasion in May 2017, officers contacted the pub and the noise was reduced immediately.
  6. I appreciate Miss Z is affected by the noise from the pub. She says it spoils her enjoyment of her garden. However, based on the information provided I am not persuaded there is fault by the Council in this case. The Council has visited both Miss Z’s property and the pub but has never witnessed noise at a level it would consider a statutory nuisance. I am satisfied the Council has used its professional judgment in reaching this decision and so I cannot criticise it.
  7. The Council also points out it has not received complaints from any other neighbours. In November 2017, the Council visited neighbours and spoke to those available. None of the neighbours who answered reported any problems with noise from the pub.

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Final decision

  1. I will now complete my investigation as there is no evidence of administrative fault in this case.

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Parts of the complaint that I did not investigate

  1. Miss Z says she has been experiencing noise nuisance from the pub for several years. The Ombudsman expects individuals to bring complaints to him within 12 months of them first becoming aware of the problem. I have not seen any evidence to suggest Miss Z could not have complained sooner if she considered the Council had not responded to her complaints.

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Investigator's decision on behalf of the Ombudsman

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