Summary: there was no fault in the way the Council investigated Mr & Mrs X’s complaints about noise nuisance during building works in the residential property next door.

The complaint

1. Mr & Mrs X complain that the Council did not take sufficient action to investigate their complaints about noise nuisance from building works at an adjoining residential property between March and May 2019.
2. Mr & Mrs X are both elderly and have chronic health conditions. Mrs X has limited mobility and she rarely leaves home. They say the noise from building works had an adverse impact on their health. Mrs X says she had to wear ear defenders inside her home to block out the noise.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

5. I have spoken to Mr & Mrs X about the complaint.
6. I made enquiries to the Council and considered evidence from the Environmental Protection team’s case records. I also referred to relevant sections in the Council’s guidance on investigating domestic noise nuisance complaints.
7. I have written to Mr & Mrs X and the Council with my draft decision and considered their comments.

Back to top

What I found

Statutory nuisance – the law and guidance

8. The Environmental Protection Act 1990 sets out the law on statutory nuisance.
9. Noise emitted from premises may be a statutory nuisance if it is prejudicial to health or a common law nuisance. Guidance issued by central government says to be a statutory nuisance, it must “unreasonably and substantially interfere with the use or enjoyment of a home, or other premises.” (Environmental Protection Act 1990, section 79(1)(g))
10. When a resident in a council’s area makes a complaint about an alleged statutory nuisance, the council has a duty to take all steps that are reasonably practicably to investigate the complaint.
11. Generally, an Environmental Health Officer (EHO) will investigate and make a judgment about whether a statutory nuisance exists. There is no prescribed threshold (such as a defined decibel level) to decide whether noise is a statutory nuisance. The EHO must consider several factors including:
• the character of the area;
• the time at which the noise occurs;
• the nature, duration and extent of the nuisance;
• the use of land;
• whether it is a malicious act or a reasonable use of land by the offending party;
• the public benefit.
12. The EHO must then carry out a balancing exercise, weighing all these factors, and decide whether an average person would consider the noise unreasonable. The EHO must also balance the interests of the person who complained against the interests of the person responsible for causing the noise.
13. Case law has established that a potential nuisance may be excused if it is a temporary consequence of carrying out building or construction works. But this principle will not excuse a temporary nuisance which takes place at night and interferes with sleep.
14. If the council finds evidence of a statutory nuisance, it must serve an abatement notice. This requires the person responsible to stop or restrict the noise. In the case of noise nuisance from a property, the council can delay issuing a notice for up to seven days while it negotiates with the person responsible to stop or restrict the noise.

Mr & Mrs X’s noise complaints

15. Mr & Mrs X are home-owners in a terraced house. They are a retired couple and both have chronic medical conditions. Mrs X has arthritis in both hands and she cannot write. She has mobility problems and rarely leaves home. Mr X has a chronic medical condition and is partially deaf. He also struggles to write.
16. Mrs X told me builders gutted and completely remodelled the terraced house next door. She says they were regularly disturbed by noise from banging, drilling and power tools for several weeks while builders worked in the house.
17. Between early March and late May 2019 Mr & Mrs X made several telephone calls to different Council services, including the Environmental Protection team, to report noise nuisance and disturbance from the building works.
18. On 5 March 2019 Mrs X told the Council she had not spoken directly to the owner of the property next door because she could not leave home. She said the noise had been going on for a few days and the builders were “banging, drilling and thumping at the walls” from 9:00 a.m.
19. On 8 March a technical officer in the Environmental Health service (Officer A) called Mrs X to discuss the noise. Mrs X told Officer A that Mr X was wearing ear defenders indoors. The officer told her that unless the work was taking place at unreasonable hours, the Council could not do much. He said it sounded from Mrs X’s description that the neighbour was refurbishing the property. He offered to visit when he was next in the area and speak to the builders to find out when the works would be completed.
20. The Council’s records show Officer A visited the property and spoke to the builders on 13 March. The builder told Officer A that Mr X had already approached them to ask them to be quiet while Mrs X slept in the early afternoon. The builder said he knew Mr & Mrs X were sensitive to noise and he had tried to accommodate their request. But they also had to get the building work completed within a reasonable time.
21. Mr X telephoned Officer A on 9 April 2019 following contact with officers in other services. Mr X told Officer A he had been disturbed by noise from building works starting at 8:00 that morning. He also said the builders were working in the evenings and at weekends. Mr X said drilling was in progress during the call but Officer A did not hear it. Officer A agreed to visit the site and speak to the contractor again. He told Mr X he could not stop the building works.
22. Officer A visited the site and spoke to the builders on 9 April. The builders denied doing noisy work in the evenings and weekends. The builders said they felt Mr & Mrs X were harassing them because they had shouted at them. The builders said they did not start work too early in the morning and they had deliberately limited their use of power tools to reduce noise levels. Officer A noted one builder was manually sanding walls during his visit rather than using a powered sanding machine. Officer A informed the builders that Mr X claimed there had been loud drilling that morning. The builder said he had been using an electric screwdriver to remove some internal doors. The builders said they tried to avoid doing noisy work in the early afternoon when Mrs X was sleeping. But taking these steps had added to the time needed to complete the works. They expected the works would continue for a further 3½ weeks.
23. Officer A telephoned Mr X after this site visit. He said he considered Mr & Mrs X were particularly sensitive to noise based on his experience of handling previous complaints they had made. He said he could not impose restrictions on the building works because there was no evidence of a statutory noise nuisance. Mr X suggested to Officer A that his telephone calls were sufficient evidence of a noise nuisance. Officer A disagreed. Mr X then expressed his dissatisfaction with Officer A and said he wished to make a complaint about his handling of the case.
24. The Council registered a Stage One complaint on 10 April 2019. Mr X said he considered the Council should restrict refurbishment work at the property to prevent noise and disturbance to him and Mrs X. He said Officer A had done nothing to help them.
25. A manager replied to Mr X’s complaint on 18 April. He explained that Officer A had visited the site twice and spoken to the builders. He said the builders were aware of Mr & Mrs X’s concerns about noise levels and had limited their use of power tools as much as possible. He said the builders tried to avoid carrying out noisy work in the early afternoon when Mrs X wished to sleep. He said building works were bound to cause some disturbance and the builders had taken steps to minimise the impact on Mr & Mrs X. He also noted that Mr & Mrs X had not returned any noise logs to the Council. He said the Council would not usually investigate without this evidence.
26. On 23 April Mrs X called an officer in the Community Safety team to say the continuous noise was making her ill. The officer advised Mrs X to report this to the Environmental Health service. She says Mrs X then ended the call. The officer who took the call forwarded this information to Officer A by email.
27. Officer A replied to the Community Safety team officer. He said Mr & Mrs X had persistently complained about the property next door and refused to complete diary sheets. He said their telephone calls were not acceptable as evidence because they did not give details of the duration of the noise and the impact it had on them. He said he had visited the site twice. The work was typical domestic refurbishment work. He was satisfied there was no evidence of a statutory nuisance.
28. On 3 May Mr X wrote to express his dissatisfaction with the Stage One reply to his complaint. He said the builders were not quiet in the early afternoon and the banging noise was continuous. He said Mrs X was using ear plugs but could still hear the noise. He said he had returned noise logs to the Council. He did not consider the builders had made any compromises and they were starting work at 9:00 on Sunday mornings. He wanted to know when the building work would end. He also wanted the builders to respect his request for a quiet period in the early afternoons and on Sunday mornings.
29. On 7 May Mrs X called another officer to report excessive noise from 9:00 that morning. She said it came from drilling and the use of a sledgehammer. The officer forwarded this information to Officer B, the manager investigating Mr X’s Stage Two complaint. Officer B asked a colleague, Officer C, to contact the builder to find out when the works would be likely to be completed.
30. On 9 May Officer C told Officer B that he had been trying to contact the builder for two days without success. Officer C also spoke to Mr X on 9 May.
31. On Sunday 12 May Mrs X called the Council’s Out of Hours Service to report machinery noise and banging sounds from 11:00 am.
32. On 17 May Officer D visited the site. The builders were not on site at the time but Officer D spoke to someone in the property. He observed everything was quiet. It appeared to him that the building works had ended. He left a card for the owner to call him.
33. On 20 May the new owner of the property telephoned Officer C. He said he had moved in the previous week and the building works had now been completed.
34. On the same day an advice centre contacted the Council on Mr X’s behalf. Officer B said he would reply to Mr X’s Stage Two complaint in due course and had sent a holding reply.
35. On 31 May Officer B replied to Mr X’s Stage Two complaint. He said Officer C had visited the property in mid-May. This was the third site visit. The new owner had since contacted the Council to confirm the building works had finished. He said the Council had no record of receiving any noise logs from Mr X. He hoped Mr X would not suffer any further disturbance but, if he did, he advised him to keep a written record.
36. When I spoke to Mrs X on 2 September 2019, she told me the main works finished in mid-June 2019, and there had been one day of further work since then.
37. Mrs X says they have spent more than £60 on telephone calls to the Council to report incidents of noise nuisance. She says she called when the nuisance was occurring, and sometimes called the out of hours service at weekends. She says Mr X wants the Council to reimburse the cost of these calls.
38. In response to my enquiries, the Council sent a telephone log. It lists 16 calls from Mr & Mrs X’s landline number between 8 March 2019 and 31 May 2019. In addition to these calls, email exchanges between Council officers refer to a further four calls which do not appear on the list.
39. The Council says the property was undergoing internal refurbishment for continued residential use. The owner did not need to apply for planning permission to do this work. The Council is not aware of any change of use of the property in planning terms.

Analysis

40. There is no doubt that Mr & Mrs X were disturbed by noise from building works in the house next door between March and late May 2019. From what they have said, this caused them significant distress and it interfered with their daily routines and enjoyment of their home.
41. The Council did investigate Mr & Mrs X’s concerns by arranging for an EHO to visit the site and speak to the builders.
42. Officer A visited the site twice while building works were in progress and spoke to the builders. On these visits, he did not witness any noise which he considered to be a statutory nuisance. He also considered the builders were trying to limit noisy work at times when Mrs X needed to rest. I know Mr & Mrs X disagree with this statement. By the time Officer C visited in May, the building works appeared to have been completed.
43. The EHO had to use his judgment to decide whether the noise from temporary refurbishment works to a residential property was a statutory nuisance. The owner of the property was entitled to carry out refurbishment and building works. The EHO had to carry out a balancing exercise and consider whether an average person would find the noise unreasonable. The EHO also had to take into account the nature, time and likely duration of the noise.
44. The Council could only serve an abatement notice, and impose restrictions on working hours and/or activities, if it considered the noise was a statutory nuisance. As the EHOs did not witness a statutory nuisance, there was no evidence to justify service of an Abatement Notice. The Council did not consider Mr & Mrs X’s telephone calls were acceptable as evidence because they did not give details about the date, time, nature and duration of the noise and the impact this had on them. Mr & Mrs X say they did complete and return noise logs but the Council says it has no record of receiving any between March and May 2019.
45. Officer A says Mr & Mrs X were particularly sensitive to noise. As an elderly couple with significant health issues who spend most of their time at home, it is not surprising they found the noise distressing and disruptive. But the Council could not base its decision on Mr & Mrs X’s individual circumstances and their age and medical conditions. It had to consider whether the average person would find the noise excessive or unreasonable.
46. I considered Mrs X’s point about the cost of telephone calls. As Mr & Mrs X do not have internet access and do not use email, they had to telephone the Council to report noise nuisance and request an investigation. They incurred call charges. But we can only recommend a financial remedy where we find the Council was at fault and this caused injustice to the complainants. I have not found fault in the way the Council investigated their complaint about noise nuisance between March and May 2019. It follows therefore that I cannot recommend a financial remedy. In any event, the Ombudsman would not usually expect a council to reimburse the cost of routine calls to report incidents of noise nuisance and request a service.

Final decision

47. I have completed the investigation and found no evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman