The Ombudsman's final decision:
Summary: Mr K complains about the Council not investigating his complaint about noise nuisance. The Ombudsman finds no fault by the Council. It closed its file after Mr K did not provide the information it requested.
- The complainant, whom I shall refer to as Mr K, complains the Council has not investigated his complaint about the noise from the business running from a neighbouring property.
What I have investigated
- I have investigated Mr K’s complaint about a new contact with the Council in August 2018. I have not considered his earlier contacts, as the Ombudsman has already decided not to investigate those matters.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman 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))
- 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
- The information I have seen includes:
- Mr K’s complaint to the Ombudsman;
- Mr K’s complaint to the Council and its responses through its complaints procedure;
- The Council’s file it opened after Mr K’s new nuisance complaint;
- Information on the Council’s web-site about actions it asks complainants to take;
What I found
- The Council’s Environmental Health Team provides a service to investigate complaints of statutory nuisance. The Environmental Protection Act 1990 has the statutory rules about nuisance. Noise can amount to a statutory nuisance. If an officer witnesses noise which in her opinion amounts to statutory nuisance, she may start enforcement action to stop the nuisance and prevent its recurrence.
- The Environmental Protection Act says anyone can begin legal action against a person responsible for statutory nuisance, by an application to the Magistrates Court.
There is no set level at which noise becomes a nuisance. In deciding whether a noise amounts to a nuisance an investigating officer would consider factors including:
- the locality in which the noise is occurring;
- the time of day or night the noise is occurring;
- the loudness and duration of the noise;
- how often the noise occurs.
The Council’s procedure
- Information on the Council’s website advises residents to first try to raise concerns about noise informally with the perpetrator. It advises that, if that does not resolve the issue:
‘…you will in most cases be required to complete diary sheets, which can downloaded below, noting the date, time and nature of your complaint. Your first set of diary sheets should show the issues that occur over a period of 14 days. The diary sheets are important as they assist the investigating officer in understanding the situation from your perspective. They are used to determine if your complaint should be progressed and a further investigation pursued. They also play a part in the council’s decision that a nuisance exists and form an important part of the evidence, should the council have to resort to formal action and ultimately take the matter in front of the courts. For this reason it is important that you complete diary sheets throughout the course of your complaint. If you fail to complete diary sheets and submit them regularly, your complaint may be closed until further information is supplied.’
- Mr K says his neighbour runs a childminding business from her home. His view is the noise produced from this business – including children playing in the garden – is a noise nuisance. Mr K says he has been complaining to the Council about this since 2013.
- On 2 August 2018 Mr K made a complaint to the Council. The following day it wrote to Mr K, enclosing diary sheets. It also wrote to his neighbour, advising it had received a complaint.
- On 16 August the Council closed its investigation, as its view was it had inadequate evidence of a nuisance. It noted Mr K had not engaged with completing diary sheets.
- In September Mr K made a complaint about the Council’s investigation. Its responses advised it had consistently given him advice that he needed to complete diary sheets. It gave him a link to information on his web-site.
- Ms K says the problem is that noise subsides for a short period after the Council sends his neighbour a letter. But it starts again after the Council closes its investigation. Mr K says the Council should be visiting and/or installing noise recording equipment.
Was there fault by the Council?
- I understand the process the Council has asked Mr K to follow must be frustrating. And that the task of completing diary sheets can seem burdensome. But the Council needs that information in order to show whether there is enough evidence for it to investigate further. At present the Council not does not have enough data to prove the complaint.
- So I see no evidence of fault by the Council. I can only suggest that Mr K remains involved in the investigation process and provides a regular log of incidents. Perhaps he could do this in the weeks before he complains to the Council. This would overcome his observation that a letter from the Council leads to a temporary reduction of the noise.
- I do not uphold this complaint. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman