Summary: There was no fault by the Council in a complaint which alleged its decision to stop a noise nuisance investigation was flawed.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains about the Council’s decision to stop a noise nuisance investigation.

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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. 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

4. I reviewed the complaint and background information provided by Ms X and the Council. I sent a draft decision statement to Ms X and the Council and considered the Council’s comments on it.

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What I found

The law and government guidance on statutory noise nuisance

5. The Environmental Protection Act 1990 states councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance”. The noise complained about might be loud music, barking dogs or noise from industrial, trade or business premises.
6. For a noise to count as a statutory nuisance, it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure health or be likely to injure health.
7. An environmental health officer will come to an independent judgement on whether there is a statutory nuisance. The process of determining what level of noise constitutes a nuisance can be quite subjective. Officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has occurred.
8. If an officer decides that a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
9. It is also open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.

Complaint background

10. Ms X contacted the Council in or around March 2019 because of noise emanating from a garage close to her home. Ms X asked the Council to ensure the garage worked from 8.00am to 5.00pm and not 5.30pm.
11. Two environmental health officers visited Ms X’s home. They observed the noise coming from activities at the garage. They concluded there was no statutory nuisance.
12. Ms X contacted the Council after the visit to query the decision.
13. Ms X said the two officers manipulated the noise coming from a nearby road. She queried why one of the officers stood on a ledge by her fence so that his head and shoulders were over the fence whereas she is well protected from the traffic noise by the fence and nearby buildings. Ms X said she kept her windows and doors shut to keep out excess noise. Ms X queried why another officer went upstairs and opened the windows just so he could say there was traffic noise. Ms X said the officer telephoned her afterwards to say the Council would ask the garage to limit the time of use of spray bays to between 8.00am and 5.30pm.
14. Ms X said up to a few months previously the garage closed at 5.00pm. Ms X said she wanted to appeal the Council’s decision.
15. The Council responded to Ms X’s enquiry a few days later. The officer who responded said she had discussed the case with one of the environmental health officers who visited Ms X’s home. The environmental health officer said the noise Ms X was experiencing was not a statutory nuisance and so the Council would not take any formal action. The officer said his judgement was based on the ambient noise levels, including traffic noise but also the nature of the area, the volume and duration of the noise, the reasonableness of the activity causing the noise and whether best practicable means are being taken to control it.
16. The Council said it had contacted the garage about use of booths beyond 5.30pm informally. It said the garage could not close at 5pm for operational reasons.
17. Ms X complained to the Ombudsman in May 2019. Ms X emphasised that her complaint was about the Council’s decision the garage could finish its activities at 5.30pm rather than 5.00pm. But her complaint was premature as it had not exhausted the Council’s complaints procedure.
18. The Council responded to the complaint in July 2019. It iterated its officers visited Ms X in March 2019 and had assessed the noise against criteria including the nature of the area; the volume and duration of the noise; the reasonableness of the activity causing the noise given the premises it is arising from; and whether best practicable means are being taken to control it.
19. It said the judgement of officers was that the noise did not constitute a statutory nuisance. It was satisfied environmental health officers had thoroughly investigated the complaint in accordance with its procedures and national guidance.

Finding

The Council’s decision on whether a statutory nuisance exists

20. I do not find fault with the Council’s investigation of the noise complaint. It is for a council’s environmental health officers to judge whether a statutory nuisance exists. In doing so, case law has established that officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has occurred. In this case, I am satisfied the officers took account of these factors during the site visit to Ms X’s home.
21. The Council decided there was no statutory nuisance after one visit. But there is no statutory requirement that officers make a decision on whether a statutory nuisance exists only after several site visits. It is evident officers concluded the noise levels and traffic conditions were unlikely to change and so another site visit was unnecessary.
22. There is one clear area where I consider the Council fell short. Ms X’s complaint clearly referred to the garage operating beyond 5.00pm and until 5.30pm. In one of her emails to this service she goes further to refer to the garage working on a Saturday.
23. In its responses to Ms X’s complaint, the Council did not clarify the operating hours of the garage including whether it is restricted to certain opening hours by a planning condition. The Council did say the garage could not close at 5.00pm for ‘operational reasons’ but this explanation was opaque.
24. In response to my observations here, the Council confirmed there are no planning restrictions on the hours of use and so the garage operates within its permissions.

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Final decision

25. I closed this complaint because there was no fault in the Council’s decision to stop the noise nuisance investigation.

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Investigator's decision on behalf of the Ombudsman