Summary: Mr D complains about the Councils handling of his reports of noise nuisance at a development close to his home. I have completed my investigation on the basis there was no fault with how the Council considered Mr D’s reports or how it dealt with his complaint.

The complaint

1. The complainant, to whom I shall refer to as Mr D, complains the Council made errors when dealing with his report of noise nuisance at a housing development close to his home. Mr D says:
• The Council failed to take effective and timely action against the developer after he reported the noise nuisance from 2017.
• The Council said it had served an abatement notice when it had not.
• The Council did not follow its complaints process.
• The Council breached the Data Protection Act, by disclosing his information to the developers.

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What I have investigated

2. I have investigated how the Council responded to Mr D’s reports of a noise nuisance from January 2018. I have also investigated how the Council responded to his complaints.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr D; and
• considered documents provided by the Council, and
• communicated with Mr D about the complaint.
8. I also sent a draft version of this decision to both parties, and invited their comments.

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What I found

Legal and administrative context

9. Councils must consider complaints about noise that could be a statutory nuisance. 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 property
• Injure health or be likely to injure health

10. A statutory nuisance will usually need to be witnessed by the Environmental Health Officer and they will come to a judgement. The process of deciding what noise forms a nuisance can be subjective. The noise, its length, timing and location may be considered when deciding whether a nuisance has happened.
11. If an officer decides a statutory nuisance is happening, councils must serve an abatement notice. This requires those responsible to stop or restrict the noise. If someone does not comply with a notice they can be prosecuted and fined.
12. The Control of Pollution Act 1974 (CoPA) is also relevant in cases where noise is present. This allows the Council to serve a notice on the developer if it considers noise from the site to be excessive.
13. The Council’s has a three stage complaints process:
• Stage 1 – Local resolution
• Stage 2 – Service investigation
• Stage 3 – independent investigation
14. The Council aims to respond to complaints at stage one within 5 days, and at stage two and three within 15 days. Its policy explains it may decide not to progress a complaint through all stages of the process, but when it does it will explain why.

Key facts

15. Mr D lives in a residential area, close to a new housing development. Between March 2017 and December 2018, Mr D made reports about noise from the development.
16. In January 2018, after meeting with the developer, the Council told them work should not be carried out on the site outside of the allowed times, and radios should not be used on the site. The Council said if the developer did not comply, it would be issued with an abatement notice.
17. The Council later visited the site and recorded no noise nuisance was witnessed.
18. The Council continued to keep in contact with Mr D, who reported the radio noise had decreased and, although radios were sometimes used, it was for a relatively short period.
19. In March 2018, Mr D contacted the Council again and said the use of radios had become an issue again. He said the radios were being used often and were loud. Mr D provided videos showing the noise nuisance and asked the Council to issue an abatement notice.
20. The Council explained to Mr D it would need to witness the noise nuisance before issuing an abatement notice, so asked him to let the Council know as soon as the noise nuisance started again.
21. In April, the Council made another visit to the site, but recorded no noise nuisance had been heard.
22. In April 2018, the Council issued the developer with a notice under CoPA. The notice told the developer to stop working outside of allowed times and to stop using equipment such as radios close to properties.
23. The Council told Mr D a notice had been issued, and wrongly referred to this as an abatement notice.
24. Between April and July, Mr D contacted the Council on several occasions. He reported the radio noise had returned, but these reports were intermittent and at times Mr D said there was no noise nuisance.
25. In August, Mr D contacted the Council and asked it took legal action against the developer.
26. The Council said legal action would not be in the public’s best interest for two reasons. Firstly, because it would be unlikely to be successful, because the developer had been doing everything the Council had asked it to do. Secondly, because the developers were due to complete works within weeks.
27. Mr D later submitted a complaint. The Council responded under stage 1 of its complaints process, one week later. Mr D appealed, and the Council responded about one month later. It explained it was combining its stage 2 response with a stage 3 review to resolve the matter quickly.
28. In its responses to Mr D’s complaints, the Council said it should have issued the CoPA notice six weeks earlier than it had, and so offered Mr D £200. The Council said it could not have issued an abatement notice, because it had not witnessed a statutory noise complaint.

Analysis

29. Mr D believes the Council should have acted against the developer for the noise it was creating, and it should have issued an abatement notice rather than a notice under CoPA. Mr D also believes the Council failed to follow its complaints procedure, by skipping stage 3.
30. It is for councils to decide if there has been a breach of a planning condition and if enforcement action is expedient. It is also for councils to decide if something meets the definition of a statutory nuisance or if it should have taken action under CoPA.
31. Before taking any of these decisions councils need to investigate and witness the problem complained about. Officers can then decide what action is suitable.
32. It is not for the Ombudsman to question decisions taken by properly trained council officers when decisions are taken without fault. The Ombudsman’s role is to look at how decisions were taken.
33. The Council attended the site twice and reviewed videos provided by Mr D, but did not consider the noise amounted to a statutory nuisance. It did however meet with the developers, issued a warning and eventually issued a notice under CoPA to resolving the issue. I do not find fault with how the Council handled these matters.
34. When the problems continued, the Council made the decision not to take legal action and fully explained to Mr D why. This is a decision it is entitled to make, I therefore do not find fault with how it reached this decision.
35. The Council did incorrectly tell Mr D that an abatement notice had been issued, when it had actually issued a CoPA notice. I have not seen any evidence that the Council did this deliberately, and I consider the Council’s apology for this to be a sufficient response.
36. There was however some delay in issuing the CoPA notice to the developer, something the Council accepts and has offered to remedy. I therefore need to consider if the Council’s offer of £200 to remedy this is sufficient.
37. The Ombudsman’s remedy guidance explains when there has been a delay in taking action, leading to a loss of amenity, we recommend payments ranging from £75 to £350 a month, depending on the seriousness of the issue.
38. Having considered the six-week delay in issuing the CoPA notice, it seems the noise disturbance suffered by Mr D was during the day and intermittent. It is for this reason I have decided the Councils offer of a remedy payment of £200 is a suitable remedy.
39. Having reviewed the Councils responses to Mr D’s complaint, although the response to his complaint at stage 2 of the process was delayed, I do not consider this caused Mr D any significant injustice.
40. The Council’s decision to combine its response with a stage 3 review was something its policy allowed for, and it meant Mr D had a final response quicker than if the Council had proceeded to stage 3. I therefore find no fault with the how the Council responded to Mr D’s complaints.

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Final decision

41. I have completed my investigation with a finding of no fault.

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Parts of the complaint that I did not investigate

42. I have not investigated the matter of whether the Council breached the Data Protection Act. It is not for the Ombudsman to investigate complaints about data protection, this is because the Information Commissioners Office (ICO) are better placed to investigate these matters.
43. I have also not investigated matters prior to January 2018. This is because these matters took place more than 12 months ago, and I do not consider there to be a reason to exercise discretion in this case.

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Investigator's decision on behalf of the Ombudsman