Summary: The complaint is about the Council’s investigation of complaints of noise nuisance. The Ombudsman’s view is the Council has carried out an extensive investigation. Its officers have not witnessed a noise that amounts to a nuisance. As there is no evidence of fault, the Ombudsman cannot question the merits of the officers’ view.

The complaint

1. The complainant, whom I shall refer to as Miss G, complains:
• about Council inaction in response to her reports of noise nuisance from a shopping centre.
• The noise team lied about a new condenser plant that had been put on the roof of a restaurant in September 2017. They said they did not know where a rumbling vibration was coming from.
• About how the Council conducted monitoring and recording in her home.

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What I have investigated

2. I am investigating matters from August 2018, which is the time since our last decision on a complaint from Miss G.

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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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss G;
• made enquiries of the Council and considered its response;
• spoken to Miss G;
• written to Miss G and the Council with my draft decision and given them an opportunity to comment.

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What I found

Legal and administrative background

6. The Council’s Environmental Health Team provides a service to investigate complaints of statutory nuisance. The statutory provisions relating to nuisance can be found in the Environmental Protection Act 1990. Noise can amount to a statutory nuisance. If an officer witnesses noise, which in her opinion, amounts to statutory nuisance, she may initiate enforcement action to stop the nuisance and prevent its recurrence.
7. There is no set level at which noise becomes a nuisance. In deciding whether a noise amounts to a nuisance an investigating officer would consider factors including:
• the locality in which the noise is occurring;
• the time of day or night the noise is occurring;
• the loudness and duration of the noise;
• how often the noise occurs.

What happened

Background

8. Miss G lives in a flat, close to a shopping centre. From September 2017 she was complaining about noise from refurbishment works. Officers visited and heard a humming noise they considered loud enough to constitute a statutory noise nuisance. Council officers met staff from the company that manages the shopping centre. Its later investigations did not witness again noise amounting to a statutory nuisance.
9. Miss G contacted her Housing Association. It commissioned a noise survey and investigation. The report concluded it was not able to identify the source of the noise. Possibilities included internally within the block or from outside, including, possibly, from the shopping centre.
10. Miss G complained to the Ombudsman. She advised us then her view was the noise was coming from condenser units on the roof of the shopping centre. Our investigation did not find evidence of fault by the Council. We also found no evidence to confirm Miss G’s assertion of ‘collusion’ between the Council and the shopping centre management company. We did not uphold the complaint.

Events since August 2018

11. Miss G contacted the Council again at the end of August 2018, reporting noise coming from the shopping centre. Council officers visited (in response to her calls) three times in the next few weeks. They did not witness any noise that amounted to a statutory nuisance.
12. In October the Council took sound level measurements over two evenings. Although they did record noise, this was not of an extent that constituted a statutory nuisance.
13. Officers met with Miss G in November. They advised her of the findings from the measurements and played her the recordings.
14. Later in November, a Council officer carried out night-time noise surveys around the shopping centre and the surrounding area. The surveys did not find any works or plant noise.
15. The Council installed noise recording equipment into Miss G’s home from 20 December to 2018 to 10 January 2019 (although there was a period during this time when the equipment was not working). The Council says the recordings did not show any noise that would amount to a statutory nuisance. It emailed Miss G a report at the end of January.
16. In February Miss G emailed the Council 26 videos she had taken, recording noise in her home. The Council has sent us a log of its consideration of those videos.
17. In April an officer visited the site. He went onto the roof of the shopping centre. His note says:

“I surveyed the whole roof area and the only condenser units were the large bank of plant in the middle of the roof”.

18. Miss G complained to the Ombudsman. In response to my enquiries, the Council refuted Miss G’s assertions there were any new condenser units connected with the shopping centre. It noted there was no record of any planning applications for a new condenser unit for the shopping centre.

Was there fault by the Council?

19. The Ombudsman cannot find fault where a council has taken appropriate steps to investigate reports of noise nuisance. It is not our role to decide whether any noise is a statutory nuisance.
20. The Council has invested some time in investigating Miss G’s complaint, using a variety of methods, to attempt to witness the noise Miss G has reported. None of those interventions led to an officer witnessing noise that, in their opinion, amounted to a statutory nuisance.
21. The law is clear that, for a statutory noise nuisance to exist, it must be witnessed and considered to be such by a council environmental health officer. I understand that Miss G has a very strong contrary view about whether noise that has affected her family amounts to a nuisance. However, it is solely the Council officer’s decision whether or not a noise nuisance is a ‘statutory noise nuisance’, as defined by the law.

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Final decision

22. My decision is there was no fault by the Council. I have completed my investigation.

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Parts of the complaint that I did not investigate

23. Miss G wanted us to reinvestigate matters our earlier investigation considered. She said we needed to do this, as the Council had lied to us during our earlier investigation. But I see no evidence to support Miss G’s assertions. I will not reinvestigate matters we have already looked at.

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Investigator's decision on behalf of the Ombudsman