Summary: Mr B complains the Council delayed investigating his noise complaint and taking enforcement action. Mr B complains the noise affects his enjoyment of his home and garden. The Ombudsman found fault with the Council for its delay in undertaking and progressing the investigating. Mr B was caused an injustice because he was exposed to a statutory noise nuisance for longer than necessary. The Council has agreed to take action to remedy that injustice.

The complaint

1. Mr B complains the Council delayed investigating his noise complaint and taking enforcement action. Mr B complains the noise affects his enjoyment of his home and garden.

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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. 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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

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How I considered this complaint

4. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines;
• the Council’s policies and procedures; and
• Mr B and the Council’s comments on a draft decision.

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What I found

Legislation and statutory guidance

5. Councils must investigate complaints about matters which could be a nuisance covered by the Environmental Protection Act 1990. These include complaints about noise.
6. The Council must decide if the noise is a statutory nuisance.
7. For a noise to amount to an actionable statutory nuisance, two conditions must be met:
• It must cause significant interference to the normal occupation of premises by a person of average sensitivity.   
• It must be caused by some unreasonable or unusual act or omission or behaviour. 
8. In deciding if a noise amounts to a statutory nuisance, the Council must take account of factors such as the frequency, duration and characteristics of the noise. The assessment is not based on decibel limits.
9. If the Council considers the noise amounts to a statutory nuisance it must serve an abatement notice.
10. Members of the public can apply to Magistrates Court for an abatement notice.

Council Procedure

11. The Council does not have its own environmental health department. Environmental health services are provided by Worcestershire Regulatory Services (WRS), a shared service partnership with other district councils.
12. WRS has a seven-step investigation procedure for nuisance complaints:
• Step 1: informal engagement
• Step 2: request WRS assistance
• Step 3: WRS investigation
• Step 4: evidence gathering
• Step 5: formal notice
• Step 6: evidence gathering
• Step 7: prosecution
13. WRS says if there is evidence to prove a nuisance exists, and an officer is satisfied it is actionable in law abatement notices can be served on the offending party.
14. WRS says where there is not enough information to prove the noise is a statutory nuisance or the complainant refuses to cooperate with the investigation, the complaint will not be processed further. WRS advises the complainant may take their own private action under Section 82 of the Environmental Protection Act 1990.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. In August 2017, Mr B says he raised concerns with the Council about the noise that could be produced if a nearby car wash was upgraded. The Council say it has no record of this. The car wash was upgraded in February 2018.
17. In March 2018, Mr B made a noise complaint to WRS. Mr B said the noise levels from the car wash were excessive and intrusive. Mr B gave WRS noise diary sheets he had completed. Mr B told WRS he was happy for it to install recording equipment in his property.
18. WRS responded to Mr B three weeks later, after Mr B made a formal complaint about the time it was taking to get a response. WRS explained how the noise nuisance could be investigate and that there was a ‘backlog of other jobs’.
19. In May 2018, WRS spoke to Mr B. WRS told Mr B it would have noise recording equipment available ‘probably within the next couple of weeks’.
20. WRS carried out a site visit to the car wash in May 2018. The owner, Mr D, said he was planning to enclose the car wash as part of developing the site. Mr D advised this could take a few months. Mr D agreed to an informal curfew between 7pm and 7am on weekdays and between 6pm and 8am at the weekend.
21. In June 2018, Mr B told WRS Mr D had breached the curfew. WRS spoke to Mr D who said he would remind his staff about the curfew. Mr B submitted more diary sheets.
22. Mr B emailed Mr D in July 2018 asking for a timescale for the work he would be undertaking to reduce the noise from the car wash. Mr D could not give Mr B a timescale. Mr B complained to WRS that his noise complaint had not been investigated properly.
23. In September 2018, Mr B asked the Council for an update. Mr B gave the Council noise levels from sound recordings he had taken when the car wash was and was not in use.
24. WRS installed noise recording equipment in Mr B’s property in October 2018. The officer who installed the equipment noted the car wash could be heard when it was in use. WRS said the equipment did not work properly because of a power cut and the readings were unreliable.
25. WRS carried out a site visit to the car wash and spoke to Mr D. Mr D told WRS he had done everything he could to resolve the issue. The officer listened to the noise of the car wash and decided it did not appear to be a statutory nuisance. WRS told him it would carry out live noise measurements and if the noise was a statutory nuisance it would serve a notice.
26. WRS visited Mr B and carried out a site visit in December 2018. WRS asked Mr D how often the car wash was in use and took noise readings. WRS and the Council met with Mr D to discuss his plan to develop the car wash and how noise levels could be reduced. Mr D told WRS he would give them a copy of a report he was expecting from an acoustic consultant.
27. The result of WRS’s investigation was the noise created by the car wash was ‘not necessarily going to be a statutory nuisance’ and did not justify serving a noise abatement notice.
28. In January and February 2019, Mr B asked WRS four times for the result of the noise readings. WRS told Mr B the officer dealing with his noise complaint was on leave. Mr B complained Mr D had breached the curfew. WRS said it would remind Mr D about the agreed curfew.
29. Mr D gave WRS copies of the acoustic consultants reports in February 2019. The report for the proposed jet wash concluded it would have no significant adverse impact on residents. The report for the automatic car wash showed the use of the car wash was significantly higher than the data Mr D had given WRS and would have an adverse impact on Mr B. The report said measures needed to be put in place to reduce the impact of the noise produced by the car wash and included a plan to reduce the noise.
30. WRS spoke to Mr D in February 2019. Mr D told the Council he would not follow the advice given by the WRS or the acoustic consultant to reduce the noise created by the car wash.
31. WRS wrote to Mr B in February 2019. WRS summarised the actions it had taken to investigate the noise complaint. It explained it had tried to work with Mr D to resolve the problem, but now it understood the frequency with which the car wash was being used and that Mr D was resistant to follow the advice given, it would serve a noise abatement notice. The Council explained what would happen when the noise abatement notice was served.
32. WRS served a noise abatement notice in February 2019. The notice gave Mr D four months to reduce the noise.
33. In March 2019, WRS responded to Mr B at stage 3 of the complaint procedure. WRS explained it could not have taken enforcement action earlier because it did not have evidence of a statutory nuisance until it received the acoustic consultant’s report. WRS responded to Mr B’s question about why it had agreed a curfew that may have contradicted planning conditions. The Council said it was not standard practice for officers to consider planning conditions when investigating a noise complaint however, it had updated its protocol for investigating noise complaints to include contacting planners to see if planning conditions have been contravened.

Analysis

34. Mr B made a noise complaint in March 2018. In May 2018, WRS started its investigation and carried out a site visit. The Council got Mr D to agree to an informal curfew. However, WRS did not check if there were any planning conditions for the car wash which restricted its operating hours nor the frequency of use. Asking Mr D to put a curfew in place indicates that WRS considered the noise a problem. The Council should have taken assertive action to address the noise complaint.
35. Although Mr B made a complaint in March 2018, WRS did not install noise recording equipment until October 2018, seven months later. WRS decided the recordings collected in October 2018 were unreliable because of a power cut. However, WRS did not collect extra recordings. Instead, WRS carried out a site visit and decided the noise created by the car wash was ‘not necessarily going to be a statutory nuisance’. It is unclear what evidence the Council relied on to make this decision.
36. In February 2019, a report commissioned by Mr D found the car wash was used more frequently than recorded in the data he provided the Council. As a result of the frequency of use, the report concluded that the noise created by the car wash had a significant adverse impact on Mr B. Because of this report, WRS decided the noise from the car wash was a statutory nuisance. However, the diary sheets Mr B submitted in March 2018 indicated that the frequency of use of the car wash was greater than reported by Mr D. The Council should have investigated this discrepancy at that time; not doing so was fault and a missed opportunity to identify at statutory nuisance much earlier.
37. WRS delayed collecting evidence during its investigation of Mr B’s noise complaint. Had WRS conducted the investigation properly and timely, it would have found the noise created by the car wash, given the frequency of use, was a statutory nuisance earlier. WRS’s delay meant Mr B had to live with a statutory noise nuisance for longer than necessary resulting in a loss of amenity.
38. WRS was acting on behalf of the Council and therefore the Council is responsible for its actions.
39. I have considered the case from the date Mr B made a complaint about the noise nuisance to when WRS served a noise abatement notice. If Mr B is unhappy with the Council’s enforcement of the noise abatement notice, he can make a new complaint with the Council and return to the Ombudsman if he is not satisfied with the response.

Agreed action

40. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of WRS, I have made recommendations to the Council.
41. Within one month of the final decision, the Council will:
• Pay Mr B £75 a month from May 2018 to January 2019 for the injustice caused by the Council’s delay in taking action to address a statutory noise nuisance; a total of £675.
• Pay Mr B £100 for the time and trouble of keeping records of the noise nuisance during the period of delay.
• Provide the Ombudsman with a copy of its internal service standard for noise complaints.
42. The Council should provide the Ombudsman with evidence that the above recommendations have been completed.

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Final decision

43. I have completed my investigation and uphold Mr B’s complaint. Mr B has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman