Summary: The Council failed to properly follow its policy for controlling noise at a park near Mr B’s. Before we investigated the complaint, the Council had apologised to Mr B and had acted to prevent similar failings in future. This is sufficient to remedy Mr B’s injustice.

The complaint

1. Mr B complains that the Council has failed to take the action it agreed to take to minimise the impact of noise from events which are held at a park near his home. He says that as a result, he has been unacceptably disturbed by another noisy event at the park.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

5. I have considered the complaint and the documents provided by the complainant and given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation and guidance

6. The Environmental Protection Act 1990 says:

“…it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with…and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.”

7. A statutory noise nuisance is much more than annoyance or the fact that noise is audible. For a noise to be a statutory noise nuisance it must be a significant or unreasonable emission of noise that materially interferes with the use and enjoyment of a person's home. Several factors determine whether noise is a statutory noise nuisance, such as the time of day the noise occurs, how loud the noise is and how often it occurs. Council officers have to consider what would be unreasonable for an average person. Some people have an increased sensitivity to noise and this should not be taken into account when determining a nuisance.
8. Where it is established that noise from an event is causing, or is likely to cause, a statutory nuisance, the Council must serve an Abatement Notice, requiring that the nuisance is abated.

Previous complaint

9. Mr B previously complained to the Ombudsman that the Council was failing to take effective action to deal with noise disturbance from events taking place at the park. We found that the Council had failed to properly control noise from the events and had failed to properly deal with Mr B’s complaints.
10. We made recommendations to remedy Mr B’s injustice and to prevent similar failings in future, which the Council agreed to take. It agreed to develop a policy for the control of noise at outdoor events, to include the maximum number of events it will allow at the park, the noise levels it considers should be achieved and when it will carry out noise monitoring. The Council also agreed to:

• Consider whether each event has the potential to cause an unreasonable noise disturbance and keep a record of its decision, along with any action it considers should be taken to minimise this potential;
• Carry out noise monitoring in accordance with its policy and keep a record of any noise readings taken during events;
• Provide residents with a clear method for complaining about the noise from events so that immediate action can be taken to reduce the noise, if it is considered necessary; and
• Record all noise nuisance complaints and the action it takes to deal with them.

Current complaint

11. On 4 November 2018, Mr B made a formal complaint to the Council about noise from a fireworks event and funfair at the park. He said that there had been loud music and the noise had continued for over six hours. Mr B asked the Council if it had carried out any noise monitoring and to provide details of the action it had taken to minimise noise disturbance from the event.
12. An officer from Environmental Health visited Mr B to discuss his concerns. She explained that the event would have been considered to be low risk for causing possible disruption, apart from the noise from the fireworks. The officer suggested providing a tablet or noise recording equipment for Mr B to use in his home during the summer.
13. In the Council’s response to Mr B’s complaint, it said that the organisers had submitted an Event Management Plan which was considered by its Safety Advisory Group (SAG). It confirmed that it had not carried out any noise monitoring.
14. Mr B was dissatisfied with the response and escalated his complaint. He said that the Council had disregarded the recommendations made when the Ombudsman investigated his previous complaint. In particular, he said that the Council had:

• Failed to carry out any noise monitoring;
• Failed to consider whether the event would cause a noise nuisance; and
• Failed to take any action to minimise the potential problem.

15. In the Council’s final response to Mr B’s complaint, it explained that its Environmental Health Officers did not consider the event to be high risk or a cause for concern from a noise nuisance point of view because it was an established event which Environmental Health had not previously considered caused a statutory noise nuisance. However, it accepted that it had not kept a record of its decision regarding the potential for the event to cause an unreasonable noise disturbance, or whether it considered any actions were necessary to minimise the potential for noise nuisance.
16. The Council sent Mr B a copy of the policy it developed following the previous Ombudsman investigation. It sets out the Council’s approach to events at the park and says that the event organiser is responsible for monitoring sound levels to ensure they do not exceed 65 dB next to residential housing. The Council told Mr B that the organisers of the fireworks and funfair event had been unable to provide evidence of any noise readings.
17. The Council accepted that the noise control elements of the Event Management Plan should have been more fully reviewed and did not receive sufficient scrutiny. It said that it would be making the following recommendations:

• “That an Environmental Health representative is present at each SAG meeting which has implications for noise generation. To ensure this happens, invitations should be sent to the regular representative, as well as Environmental Health management, who should nominate a substitute if the regular representative is unable to attend.
• Scrutiny of the Events Management Plan through the SAG must ensure that where an event is anticipated to result in unacceptable noise nuisance:
• a named person in the event organisation team is provided as a contact point in dealing with noise management issues and actions;
• this named person should also take responsibility for noise monitoring and provision of the readings to the Council;
• adequate details which satisfy Environmental Health are provided as to how compliance with maximum permitted noise levels will be ensured.
• That the 'Policy for the Use of Central Park' be amended to include a statement that the event organiser is required to keep a record of noise testing and provide this to the Council after the event.
• That the 'Policy for Use of Central Park' is provided to all event organisers where there is potential for noise nuisance and they should be made aware in advance of their responsibilities with regard to managing noise. The document should also be made available on the Council's website.”

18. The Council told Mr B that residents can download an app to enable them to record noise nuisance and report it outside of the Environmental Health team’s operating hours. It offered to loan Mr B a tablet for him to use over Easter so that he could record and report any incidents when the funfair was next at the park.
19. Mr B was dissatisfied with the Council’s response and complained to the Ombudsman that the Council had failed to take the actions agreed following our previous investigation. He said that he did not consider the event organisers should be assessing the noise impact themselves and he did not consider the tablet and app would be suitable for recording and analysing the noise.

Analysis

20. The Council’s responses to Mr B’s complaint show that it failed to follow its policy on the use of the park. This was fault. The Council has apologised to Mr B and provided details of the action it will take to ensure the policy is properly followed in future.
21. I have considered how this failing affected Mr B. If the Council had properly followed its policy, it is unlikely that it would have considered the event had the potential to cause an unreasonable noise disturbance, or that any action was necessary to minimise the potential for noise nuisance. The fireworks and funfair are an established event and I am satisfied that the Council would have considered it to be low risk. I note that Mr B says in his initial letter of complaint that the noise from the event during previous years was tolerable. I have seen nothing to suggest the Council should have anticipated that the noise would be any worse than previous years. I therefore do not consider Mr B would have been less affected by the noise from the event if the Council had properly followed its policy.
22. I do not consider it is fault for the Council to decide that noise monitoring should be carried out by the event organisers. This is a decision it is entitled to reach. However, the Council failed to ensure the event organisers carried out the noise monitoring or provided a copy of any noise readings. This has left Mr B with uncertainty as to whether noise levels exceeded the maximum level allowed. The evidence would have been useful when considering future events at the park.
23. I do not consider the Council is wrong to ask residents to record noise disturbance on an app in the first instance, so long as it takes appropriate action should it find that the app does not provide the evidence it needs.
24. The Council has provided evidence to show that it has taken the steps detailed in paragraph 17 above. I consider this action and the apology already given to Mr B is sufficient to remedy his injustice.

Final decision

25. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice to Mr B. The action the Council has already taken is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman