Summary: There was no fault by the Council in a complaint alleging fault with its handling of noise nuisance complaints Mrs X made about the operation of an ice rink in a local park.

The complaint

1. Mrs X complains about the Council’s handling of noise nuisance complaints she made about the operation of an ice rink in a local park.
2. Mrs X says:
• A desk top noise assessment was carried out by the Council and various assumptions on the level of the expected noise were made. Members of the planning committee were misled by officers.
• The Council failed to respond to initial noise complaints she and others made.
• Readings taken by environmental health officers showed noise readings from chiller units were in the region of 64dB rising to 72dB when the chillers ‘kicked in’ in the early hours of the morning.
• An environmental health officer claimed an increase in the noise level would not increase the noise level heard in nearby properties.
• The Council has a policy of not responding to calls about noise unless calls are made from three different properties.
• Noise exceeded permitted levels but the Council’s officers failed to come out during the key times except on one occasion when officers placed sound recording equipment in a bedroom so recordings could be taken throughout the night.
• Officers orally admitted noise exceeded the permitted levels during a visit but then subsequently claimed the readings were faulty and accused the owner of a property of tampering with the equipment.
• Officers asked them to complete a two-week diary of noise issues but decided there was no statutory nuisance before the end of the two-week period and without looking at the sheets.
• The Council refused to provide a full set of data from the sound recordings taken by officers.
• Environmental health officers refused to accept data from apps on their phones and refused to help them calibrate the apps despite being asked to do so three times.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. I reviewed the complaint and background information on it. I discussed matters with Mrs X by telephone. I sent a draft decision statement to Mrs X and the Council and invited the comments of both parties on it.

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What I found

The Council’s noise nuisance policy

6. The Council has a duty to inspect its area for instances of statutory nuisance and to serve abatement notices where they exist, or are likely to occur or recur, under the Environmental Protection Act 1990
7. Its policy says noise complaints will be assessed and an initial response to the complaints will be provided within seven working days.
8. Section 7.2 of the policy says a trained environmental health officer will undertake a professional assessment to determine whether a complaint about noise is a statutory nuisance. The assessment may comprise of just their subjective opinion based on knowledge and experience or may be supported by objective evidence such as sound level meter readings. A statutory nuisance is normally witnessed by the officer but occasionally action can be taken is a statutory nuisance is likely to occur or recur. Officers will take into consideration many different factors when assessing noise nuisance, such as; time of day, the duration of the noise, the type of noise, the level and frequency of the noise, regularity of occurrence etc. Therefore, a statutory nuisance needs to occur for some length of time, or with some repetition. One off occurrences are much less likely to be regarded as statutory nuisances.
9. In terms of investigating complaints, section 10.2 of the policy says complainants will be asked to keep a noise diary for 7 to 14 days to demonstrate the extent of the problem. In most cases, the person alleged to be causing the noise may be advised the Council has received a complaint in order to give them the opportunity to respond to the allegation and rectify matters.
10. Section 10.5 says the purpose of the dairy is to assist the investigating officer in establishing whether a statutory nuisance exists; to corroborate evidence which may be submitted as evidence in formal proceedings; and to assist in effective targeting of resources in order to maximise the probability of establishing that the noise amounts to a statutory nuisance.
11. Section 10.9 says officers may use a variety of monitoring techniques to investigate noise complaints. The matter could be investigated using noise recording equipment left in a complainant’s home or by officer visits carried out at the time indicated as when the noise is most likely to occur. Up to three attempts to gather evidence in this way will be made. If after three attempts a statutory nuisance is not witnessed in accordance with that indicated by the noise diary, this will indicate the situation has improved and the complaint case will usually be closed.
12. Section 10.15 says some noise complaints may warrant an officer visit prior to submission of the noise diary for example complaints about construction sites where noisy operations are limited by legislation such as hours/days of operation. Officers will liaise with developers/contractors to achieve compliance with the legislation.
13. In terms of complaint resolution, section 11.1 of the policy says the closure and resolution of a noise complaint may occur when the investigating officer has followed the investigation through to its completion resulting in one of the following;
• The noise complaint has been resolved (the noise has been prevented, stopped or reduced) through informal action.
• An abatement notice has been served and complied with or work has been carried out in default.
• Where other formal enforcement action has been taken and the noise or its recurrence has been prevented, stopped or reduced e.g. service of notices to restrict construction site times of noisy operations or community protection notice where noise has been deemed to be anti-social.
• The noise complained of does not fall within the team’s jurisdiction.
• No statutory nuisance or other formally actionable noise has been identified by the investigation carried out and no informal resolution is likely.
• The matter has been referred to an external agency or another department.
• The complainant does not cooperate with reasonable and necessary requests to assist with investigating the complaint.
• The complainant will be informed of the outcome of their complaint and if appropriate, will be offered advice on taking their own action.
14. The policy provides for an out of hours service but places limits on the categories of complaints which can be dealt with under the service. Complaints of excessive noise affecting a part of a local community can be investigated by the out of hours service but only where complaints have been received from 3 or more different households.

Complaint background

15. In the autumn of 2018, the Council proposed creation of an ice rink in a local park in partnership with an external operator. The Council provided space in the park and the operator of the ice rink obtained planning permission for the ice rink.
16. One of the conditions of the planning permission – condition 9 – placed noise limits on the operation of equipment required for the ice rink. Condition 9 stated:

“The development hereby permitted shall not be carried out other than in accordance with the mitigation measures details in sections 6 and 8 of the acoustic assessment produced by [the applicant’s acoustic consultant]. The mitigation shall ensure overnight noise levels (outside opening hours of the site) shall not exceed 45dB(A) {as a 15 min LAeq over any 15 minute period] when measured from the boundary of any noise sensitive premises (at a position to which the organisers are allowed access). Thereafter the mitigation measures shall be retained until the use and associated plan has ceased operation. Where any alternative or replacement equipment is required throughout the course of the event, the applicant shall ensure the equipment is replaced on a like for like basis with respect to noise rating.”

17. To be clear, the condition required a boundary noise limit of 45dB(A) and sought to achieve a level of 30dB(A) LAeq indoors via an open window.
18. It appears Mrs X and/or her husband reported noise from operation of plant associated with the ice rink on 27 November 2018. The Council says noise monitoring was undertaken on the following day, but the result was unreliable because of high wind speeds. It says its officers told the operator and the operator’s acoustic consultant that it was likely the operation did not comply with condition 9. The Council says the operator informed officers he would install improved acoustic enclosures around generators and chillers.
19. The improved noise mitigation measures were completed on 30 November at 9.30pm. The Council then monitored the noise levels around 11pm on the same night. It says readings were taken at the nearest residential boundary as well as from a point close to the boundary of Mrs X’s home. Officers also listened and observed the noise subjectively. Officers were satisfied the noise level complied with condition 9.
20. Mrs X made further complaints of noise from the operation of the ice rink. So, the Council carried out noise recordings on three further occasions in December 2018. It was satisfied there was no statutory nuisance.
21. I shall now turn to the details of Mrs X’s complaint.

A desk top noise assessment was carried out by the Council and various assumptions on the level of the expected noise were made. Members of the planning committee were misled by officers

22. Planning officers are statutorily required to consult with environmental health officers on noise matters when a planning application is under consideration. It is not for the Council, whether its planning or environmental health officers, to commission its own assessment of the noise impact of a proposal. Rather, it is for environmental health officers to evaluate the proposal and give their professional judgement on its merits to planning officers. This is done usually through what is described as a desktop assessment.
23. Environmental health officers reviewed the proposal and the acoustic report provided by the applicant’s consultant. The judgement they reached was that the acoustic report was acceptable subject to conditions. I do not find this process was subject to administrative fault.

The Council failed to respond to initial noise complaints she and others made

24. The Council says it received a complaint on 27 November and its officers were on site to investigate on the following day. It took three days for the operator to complete further noise mitigation measures.
25. It may be that during this period Mrs X made further reports of being disturbed by noise from the operation and these were not acknowledged by the Council. If so, that was unfortunate. But it is evident that the Council acted on the initial noise complaint it received in accordance with its noise policy. So, on balance, I am not inclined to find fault by the Council here.

Readings taken by environmental health officers showed noise readings from chiller units were in the region of 64dB rising to 72dB when the chillers ‘kicked in’ in the early hours of the morning

26. The Council provided Mrs X’s husband with a copy of the data it collected during the monitoring undertaken in November and December 2018. It says the recordings showed compliance with the 45dB(A)LAeq requirement for 15 mins on all occasions after the noise enclosures and generator exhaust baffles were installed on 30 November 2018.
27. For me to conclude that the readings taken by officers were indeed in the region of 64dB rising to 72dB as Mrs X claims, she would need to provide the recordings that show those levels. Otherwise, I would have to accept the Council’s statement that the recorded levels complied with condition 9.
28. It may be that Mrs X refers here to recordings made within a neighbouring property. The Council explained the noise levels recorded coincided with audio recordings made by the neighbour. It said the recordings were unreliable because it could not establish the source of the high noise levels although officers were able to eliminate the chillers as the source of the noise.
29. It is for officers to evaluate the noise recordings and that is what they did. It is not for the Ombudsman to now substitute his judgement for that of the Council’s officers unless there was fault in the process leading to that judgement. I do not find fault in the process here.

An environmental health officer claimed an increase in the noise level would not increase the noise level heard in nearby properties

30. The Council did not comment on this point when it responded to Mrs X’s complaint. So, I do not have background information with which to evaluate this point.
31. The question for me is whether the allegation merits further enquiry by the Ombudsman whether in terms of substantiating the allegation or considering the injustice to Mrs X.
32. The central problem here is this allegation is based on a conversation with one or more environmental health officers during a visit to the site or Mrs X’s home. It is unlikely this investigation can establish the material facts of the conversation even if I asked the Council to now provide the officer’s own recollection of the conversation. This would simply mean a clash of evidence between Mrs X’s recollection and that of the officer. I do not consider this matters warrants further enquiry by the Ombudsman given the evidential difficulty.

The Council has a policy of not responding to calls about noise unless calls are made from three different properties

33. The policy does not stipulate officers will not respond to calls about noise unless calls are made from three different properties. Rather, it says the out of hours service requires calls from three different properties in a local area in order for that service to be activated. This is of course different from the normal noise nuisance complaints which simply require a complaint from one person.
34. I do not find fault with the Council’s policy.

Noise exceeded permitted levels but the Council’s officers failed to come out during the key times except on one occasion when officers placed sound recording equipment in a bedroom so recordings could be taken throughout the night

35. This aspect of the complaint builds on the previous point about the Council’s out of hours service. It is evident Mrs X wanted officers to visit her home to witness the nuisance at the times she was disturbed by noise. But the investigation by environmental health officers involved scheduled visits to witness the noise levels at other times during the evening.
36. I do not find fault because the out of hours service did not visit Mrs X’s home as I previously said. It is normally the case that environmental health officers should try to witness a noise nuisance at the time when the complainant says it occurs. But the situation here was complicated by the fact environmental health officers took noise readings which assured them the noise was within acceptable limits. Overall, I do not find fault by the Council on this point.

Officers orally admitted noise exceeded the permitted levels during a visit but then subsequently claimed the readings were faulty and accused the owner of a property of tampering with the equipment

37. This point repeats the one considered under paragraphs 26 to 29.

Officers asked them to complete a two week diary of noise issues but decided there was no statutory nuisance before the end of the two week period and without looking at the sheets

38. The Council’s policy is clear that its officers should evaluate the noise diary to assist them in establishing whether there is a statutory nuisance. So, on that basis, there would appear to be a breach of the policy if officers did not look at the diary sheets provided by Mrs X.
39. But the policy also says there are some circumstances that warrant officer site visits before completion of the dairy sheets. In this case, the Council found noise from the ice rink was likely in breach of condition 9 on 28 November. It accepted the operator’s proposal to carry out additional noise mitigation measures before it then monitored the noise levels on 30 November. Thereafter, it received further complaints from Mrs X which led it to carry out further noise monitoring on 3 occasions. This was done in accordance with its policy.
40. So, while Mrs X had been given diary sheets on the one hand, the Council decided to respond to the complaint immediately by measuring the noise levels. I consider it would have been helpful had officers explained the diary sheets were unnecessary given their attempts to witness the nuisance personally and through the use of noise monitoring equipment. However, on the whole, I do not consider this failing was significant enough to warrant a finding of fault.

The Council refused to provide a full set of data from the sound recordings taken by officers

41. Environmental health officers told Mrs X and her husband that they could take action under section 82 of the Environmental Protection Act 1990 if they considered there was a statutory nuisance contrary to the Council’s own findings. Mrs X and her husband then asked officers for the sound recordings they had taken. It appears officers provided a partial form of the data. Mrs X and her husband made a request for the data under the Environmental Information Regulations. The Council then provided all the data.
42. I do not find fault because officers did not provide all the sound recordings to Mrs X when initially asked to do so. Provision of the recordings was a matter of courtesy rather than a requirement. But the Ombudsman takes the view that if information is capable of being given to the public when requests are made under the data regulations then local authorities should be helpful by providing the information without the member of the public having recourse to requests under the data regulations wherever possible.

Environmental health officers refused to accept data from apps on their phones and refused to help them calibrate the apps despite being asked to do so three times

43. The Council says its officers showed significant differences between readings on its own calibrated equipment and the phone apps used by Mrs X on two occasions. It says its officers are not trained in the use of the phone apps used by Mrs X and her husband and did not have the equipment necessary to test the recordings on the app.
44. I do not find fault by the Council here. The objective assessment of a noise nuisance using noise recording equipment must meet the relevant standards. The recording equipment used by the Council showed different levels from the phone app. I cannot conclude the Council should have used the noise levels on the phone app contrary to the findings on its own equipment.

Conclusion

45. Overall, I do not find fault by the Council in the matters raised by Mrs X. But I consider there are areas where the Council’s handling of noise nuisance complaints could be improved.
46. In future, the Council should be clear about the use or status of noise diaries if its officers decide that other immediate forms of investigation obviate the need to wait for completion of the dairy sheets.
47. The Council should also consider whether noise recordings or other information relating to the noise nuisance investigation can be provided to a complainant at an early stage without the need for requests to be made under the Environmental Information Regulations. The Council can consider whether certain categories of information are not exempt and so can be provided promptly.

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Final decision

48. I closed this complaint because I do not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman