Summary: There was no fault by the Council in a complaint which alleged it misrepresented information on a noise nuisance complaint involving an ice rink in a local park.

The complaint

1. Mr X says the Council misrepresented information on a noise nuisance complaint involving an ice rink in a local park. Mr X says the misrepresentation led to a statutory noise nuisance which the Council refused to accept.
2. Mr X’s complaint is composed of the following points:
• The Council selectively used data and positioned noise monitors in such a way that it could falsely conclude there was no statutory nuisance from operation of the ice rink.
• The Council’s environmental health officers did not visit another live site before commenting on the planning proposal and the desktop assessment was inaccurate.
• The Council’s officers ignored requests to move chillers.
• The operator did not turn down the chillers at night.
• Readings taken in his bedroom were done at inappropriate intervals, in strategic locations and did not include tonal readings.
• He could not take his own action under section 82 of the Environmental Protection Act as the Council refused to provide him with data.
3. Mr X wants the Council to apologise for misleading the public that the ice rink was compliant with planning conditions and to apologise to affected residents for the distress caused to them. He wants the Council to assure them a similar noise nuisance will not arise in future.

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The Ombudsman’s role and powers

4. 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)
5. 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

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

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What I found

7. 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.
8. 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.”

9. 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.
10. It appears Mr X or his wife 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.
11. 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.
12. Mr X and/or his wife 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.
13. I shall now turn to the details of Mr X’s complaint.

The Council selectively used data and positioned noise monitors in such a way that it could falsely conclude there was no statutory nuisance from operation of the ice rink

14. The decision on whether a statutory nuisance exists is based on the subjective judgement of environmental health officers. To assist officers in making the judgement they will use objective data such as noise recordings where appropriate.
15. In this case, officers took readings from the nearest residential property as well as the boundary of Mr X’s home on four occasions in November and December 2018. They also took readings within Mr X’s home as well as another nearby residence. They explained where the equipment would be located as well as the settings of the equipment. The Council also provided Mr X with all the data it obtained in response to an information request.
16. Mr X disagrees with the positioning of the equipment and considers the Council used the data selectively. But it is not possible for this investigation to now find the Council used data selectively and positioned monitors in a way that enabled it to conclude there was no nuisance simply because Mr X believes that is what the Council did. Mr X has seen the data collated by the Council but has not provided any evidence in support of his belief the data was used selectively. I cannot find fault by the Council in these circumstances.

The Council’s environmental health officers did not visit another live site before commenting on the planning proposal and the desktop assessment was inaccurate

17. 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. There is no statutory requirement for environmental health officers to visit a live site before commenting on the planning proposal.
18. 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’s officers ignored requests to move chillers

19. In its response to Mr X’s complaint, the Council explained the chillers could not be moved because there were operational limits to the location of the chillers. As officers found noise from the equipment were in accordance with the level set out in the planning condition they did not find it necessary to ask the operator to move the chillers.
20. I do not find fault with this explanation.

The operator did not turn down the chillers at night

21. The Council says the night-time operation of the ice rink complied with the planning condition and so was not a statutory nuisance. Nonetheless, it points out its officers discussed the operation of the plant in order to minimise noise output on two occasions in December 2018.
22. I acknowledge it would have been helpful to Mr X had the operator turned down the chillers at night. But the operator had authority to operate the chillers in accordance with the planning permission. In the absence of a finding of a statutory nuisance, the Council did not have the power to insist the operator turn down the chillers at night-time.

Readings taken in his bedroom were done at inappropriate intervals, in strategic locations and did not include tonal readings

23. The Council says the monitoring positions were selected as the most appropriate locations representative of the noise environment for those being affected. For indoor monitoring of the night-time noise nuisance at Mr X’s property, the Council says the microphone was positioned 1.5 metres above the floor, at least 1 metre from reflective surfaces, pointing towards and close to the window which is the weakest point of the façade.
24. The Council says it offered the use of remote noise monitoring equipment to Mr X which could have been left in his home for several days but Mr X declined the offer.
25. This service does not have expertise in acoustic monitoring nor is it our role to now act as acoustic experts. The point is to evaluate what the Council did to ensure it met its legal obligations. It is evident Mr X disagrees with the readings taken in his bedroom. But I do not find the Council acted with fault when it took the readings in his home. I have not seen any technical evidence from Mr X that would lead me to conclude the Council’s readings were inappropriate.

He could not take his own action under section 82 of the Environmental Protection Act as the Council refused to provide him with data

26. Environmental health officers told Mr X and his wife 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. Mr X and his wife then asked officers for the sound recordings they had taken. It appears officers provided them with a partial form of the data. Mr X and his wife then made a request for the data under the Environmental Information Regulations. The Council then provided all the data.
27. I do not find fault because officers did not provide all the sound recordings to Mr X when initially asked to do so. Provision of the recordings was a matter of courtesy rather than a requirement. It was then for Mr X to decide whether he had sufficient information for his intended legal action. It was also possible for Mr X to ‘join in’ the Council to any complaint he made to the Magistrates’ court. In so doing, the Council would have provided the data to the court during proceedings.
28. 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. So, although I do not find fault by the Council, I consider it could have provided the data earlier than it did.

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Final decision

29. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman