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Bolton Metropolitan Borough Council (18 011 681)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 11 Mar 2019

The Ombudsman's final decision:

Summary: Ms R complained about the Councils handling of her reports of noise nuisance. There was fault in the way the Council dealt with Ms R’s reports, as well as how they responded to her complaints. The Council has agreed to offer a financial remedy to Ms R.

The complaint

  1. The complainant, to whom I shall refer to as Ms R, complains that the Council made errors when dealing with her reports of noise nuisance, which led to delays in resolving the issue.

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The Ombudsman’s role and powers

  1. 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)
  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)
  3. 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)

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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 Ms R; and
    • considered document provided by the Council, and
    • discussed the complaint with Ms R.
  2. I also sent a draft version of this decision to both parties, and considered their comments.

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What I found

  1. Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990).The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
  2. For a noise to count as a 'statutory nuisance' it must do one of the following:
  • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises
  • Injure health or be likely to injure health
  1. Generally, the statutory nuisance will need to be witnessed by the Environmental Health Officer and he/she will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has actually occurred.
  2. 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.

Key facts

  1. Ms R complained to the Council in September 2015, about noise from a neighbouring property. The noise was caused by a dog barking at night and in the early hours, causing a disturbance to Ms R and her mother, who is disabled.
  2. The Council provided Ms R with diary sheets which she completed and returned. The Council then installed noise monitoring equipment as Ms R’s property. However, the Council did not conclude that a statutory noise nuisance existed at this point.
  3. The Council issued a notice to Ms R’s neighbour, informing them that a noise complaint had been made against them, advising them to reduce noise levels and informing them that an investigation would be conducted to verify the allegations made in the complaint. However, it later transpired that this notice was issued to the wrong address.
  4. The Council said that because of this error, the evidence collected over the previous four months could no longer be used, so the process would need to start again.
  5. The process started again, with the Council installing noise recording equipment in February 2016 but evidence was insufficient to take action, Ms R contacted the Council again in June and further diary sheets were completed, leading to noise recording equipment being installed again in September.
  6. A statutory noise nuisance was identified from noise recorders in October 2016. This resulted in the Council taking court action against Ms R’s neighbour. In January 2017, the case was heard by the Court but the Council were unsuccessful in gaining a prosecution.
  7. Ms R complained to the Council. She said that its error in serving the notice to the incorrect address, delayed resolving the noise nuisance by four months. Ms R also complained about delays in receiving responses from the Council.
  8. Ms R also complained about how the Council managed the court action. She said she had not been invited to attend at court, the Council took too long to inform her of the outcome and that she should have been given the opportunity to appeal the decision.
  9. The Council apologised for delays caused by issuing the notice to the incorrect address. It also apologised for delays in responding to Ms R’s complaint. The Council offered to pay Ms R £400 in compensation for the delay, inconvenience and frustration caused.
  10. The Council said that it made the decision not to invite Ms R to the court proceedings, because it wanted to protect her anonymity. The Council said that her evidence was heard in court, as it had presented her diary sheets.
  11. The Council said that Ms R was unable to appeal the court decision, because it was up to the Council to appeal or not. It said that the Council had decided not to pursue an appeal, because it would have delayed investigations into the noise reports further.
  12. The Council apologised for not informing Ms R of the outcome of the court hearing, and said that this was caused by an oversite due to the Pollution Unit having a heavy workload
  13. Ms R asked the Council what it planned to do to tackle the noise nuisance. The Council said that an officer from Pollution Control had attended Ms R’s property unannounced but she would not allow them access, and that Ms R had said that she did not want to make an appointment for them to visit another time. The Council said that if Ms R changed her mind about this, she could contact Pollution Control.
  14. The Council told me that, while Ms R has since been issued diary sheets she has not submitted any to the Council. The Council also told me that Ms R had not been in contact with Pollution Control since it visited her home. Ms R said she said that she had not contacted the Council because the noise had not been an issue, although recently it had started again so she would be reporting it soon.
  15. The Council told me that it acknowledged that there were delays in responding to Ms R, and said that this was caused by staff shortages and a large work load. The Council said that it has since introduced new procedures to mitigate against delays, and future staff training is also planned.

Analysis

  1. We have decided to exercise discretion to investigate this late complaint, as the issues have been ongoing, and because the Council’s own actions meant the complaint was delayed in coming to the Ombudsman.
  2. The Council made the decision to write to Ms R’s neighbour, informing them of the complaint, but made the error of sending it to the incorrect address. I consider that this led to an avoidable delay of four months, meaning Ms R and her mother suffered the noise nuisance longer than she should have. This amounts to fault. The Council has acknowledged it was responsible for this delay, and offered Ms R a payment of £250 in recognition of the injustice this caused.
  3. The Council took seven weeks to respond to Ms R’s initial complaint, despite its policy which says it aims to respond within twenty days. This amounts to fault. The Council has already offered a payment to Ms R of £150 to recognise the time and trouble caused by this fault.
  4. I recognise Ms R’s frustration at the outcome of the court hearing. However, the Council’s decision to protect Ms R’s anonymity and its decision to focus on further investigation, rather than appeal the verdict, was an approach the Council was entitled to take. As a result, I find no fault with this decision.
  5. The Council acknowledged that it delayed informing Ms R of the outcome of the court hearing. While I consider this was a shortcoming by the Council, I do not consider that it was so serious as to make a formal finding of fault, particularly as the Council has already taken appropriate action by apologising to Ms R for this. I consider this to be a suitable remedy.

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Agreed action

  1. When a Council fails to respond correctly to a report of noise nuisance, the Ombudsman’s guidance suggests remedies of between £75 and £350 per month. The lower end of the scale is for daylight hours noise which has a relatively minor impact, whereas the upper scale is for significant disruption, particularly at night, and taking account of any additional vulnerabilities of the person(s) complaining.
  2. In Ms R’s case, the noise occurred throughout the day and night, and caused significant stress and sleep disturbance. Ms R’s mother was bed-bound which meant she suffered additional injustice as a result of the noise. Based on these factors, I consider a payment of £200 per month would be appropriate figure to recognise the injustice the Council’s faults caused for the four-month period. This equates to a payment of £550, as the Council has already offered a payment of £250.
  3. I consider the Council’s offer of £150 for the time and trouble caused by the poor complaint handling is a sufficient remedy.
  4. The Council has agreed to review its complaints procedure in light of the delays in responding to Ms R’s complaint, and make any changes it feels necessary to avoid a recurrence. The Council has agreed to report back to the Ombudsman within 3 months of our final decision.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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