Summary: Mrs X complains the Council gave her misleading information about what constituted unacceptable noise from works at a neighbouring property. The Council gave incorrect information about working time guidelines and then then wrongly advised it would issue a fixed penalty notice. The Council has reviewed the noise recordings and established no statutory nuisance existed. An appropriate remedy for the injustice caused is agreed.

The complaint

1. Mrs X complains the Council gave misleading information about what constituted unacceptable noise from works at a neighbouring property and then failed to investigate whether it was a statutory nuisance.
2. Mrs X says the noise from the neighbouring property was unbearable and forced her to leave the property at times.

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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 the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and invited their comments.

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What I found

6. Mrs X’s adjoining next door neighbour began building works at their property in February 2018. Mrs X says the neighbour was completely renovating the property and working weekdays and weekends. Mrs X says the noise from the building works was unbearable. She approached the neighbour about the noise and asked if he could stop for one Sunday to give them a break from the noise. Mrs X says the neighbour was abusive and refused. She says the neighbour said he was working within the Council’s guidelines.
7. Mrs X contacted the Council in April for details of its guidelines on working hours for DIY. The Council said “the general guidelines for DIY are 08:00 – 18:00 Monday to Friday and 08:00 – 13:00 on Saturdays with no working on Sundays or bank holidays. The Council asked Mrs X to keep a 14 day noise dairy. Mrs X did this from 10 April to 13 May including detailed notes about the noise.
8. Mrs X continued to keep records of the noise focussing on Saturday afternoons and Sunday as the guidelines indicated no work should be carried out at these times.
9. The Council told Mrs X it had written to the neighbour telling them to adhere to the working hour guidelines. The letter also said it could issue a fixed penalty fine if the noise continued.
10. Mrs X said the noise continued but the Council could not take further action without noise recordings. It asked her to make recordings using a smartphone noise application. Mrs X began making recordings in October 2018.
11. In December the Council told Mrs X she did not need to make any further recordings as it was clear the neighbours were in breach of the guidelines. It told her it would issue the neighbours a fixed penalty fine. The Council also said it would need Mrs X to make a statement about the noise.
12. Mrs X contacted the Council in January for an update on her case. The officer told her he would draft a statement for her signature after which the Council could issue the fixed penalty fine. Mrs X signed and returned the statement the next day. That afternoon the case officer sent an email saying his line manager had decided the noise had not caused a nuisance and the case was closed.
13. Mrs X asked the Council to explain its decision. When no response was received she contacted her MP for assistance. The Council wrote to the MP saying that after reviewing the recordings, it took the view there was no evidence of a nuisance. It said the recordings taken by Mrs X showed the works were carried out at reasonable times of the day with the earliest recording at 08:05 am and the latest at 4:23 pm. It said 57 of the 69 recordings were made between 11 am and 3 pm when it would be reasonable for a person to carry out DIY at their property.
14. Mrs X says that 39 of the recordings were on Sunday or after 1pm on Saturday and so were outside the council guidelines.
15. The Council wrote to Mrs X on 15 March 2019 in response to a complaint. It concluded a number of errors and oversights had occurred in the handling of her case. It said the information provided about working times was misleading. It said the guidelines provided to Mrs X relate to construction sites and not DIY projects. It apologised if this information raised her expectations of what enforcement action would be taken and said it also appears to have influenced how officers initially dealt with her complaint.
16. The Council also acknowledged the officer who dealt with Mrs X’s case had limited experience of noise nuisance cases. It said it would have been helpful if he had sought advice at an earlier stage. It said the primary reason why it did not pursue the nuisance case was because the activity happened between 8 am and 4 30 pm and this would not generally be considered unreasonable.
17. The Council said it had now changed how it allocated cases with its neighbourhood team and rather than doing so on a geographic basis it was now allocating noise cases to officers with more experience and training.
18. It apologised for the failures in its service and said lessons have been learned and changes made. It advised Mrs X that if building works at the adjoining property were still happening at times that could be considered unreasonable, she could record the noise using the noise app.
19. Mrs X was not satisfied with the Council’s response and so escalated her complaint to stage two of the complaints process. The Council’s response dealt with three specific areas:
• Case handling and advice
• Misinformation led Mrs X to provide evidence at the wrong times
• The noise suffered does constitute a statutory nuisance and action should have been taken
20. In respect of case handling and advice it said there was a clear failure in the advice given and how the Council handled her case. It said it was wrong to have considered her case under the Pollution Control Act rather than the Environmental Protection Act. It made a further apology to Mrs X and said it had passed on her comments so a review of processes could be carried out.
21. Regarding the times Mrs X made recordings the Council felt it was unlikely she would not have made recordings of early morning or late night noise. It did not uphold this part of her complaint.
22. The Council said an experienced officer took the view the evidence provided did not suggest a statutory nuisance had occurred and so did not uphold the final part of her complaint.
23. The Council offered Mrs X £100 in recognition of the time and trouble experienced by Mrs X in submitting evidence in good faith that ultimately did not prove useful.

Analysis

24. The information provided shows there has been fault by the Council in this case. It gave Mrs X incorrect information about permitted working hours for DIY. This led Mrs X to believe that any work done outside of those hours was unauthorised and action would be taken. This view was reinforced when the case officer dealing with the case told Mrs X there was a breach of the guidelines and a fixed penalty fine would be issued.
25. The Council accepts its fault in this case. It knows it gave wrong information to Mrs X about working hours. It allocated the case to an officer without sufficient expertise and training in noise complaints which meant Mrs X’s noise complaints were not properly investigated.
26. Mrs X says she focussed her reporting of noise on the times outside the guidelines. The evidence I have seen does not support this position completely. The recordings made by Mrs X using the noise app are fairly equally made on weekdays and weekends. Mrs X did not make any recordings before 8 am or after 4 30 pm. I agree with the Council’s view that she would have recorded noise if it occurred at any time outside the guideline hours.
27. It is not possible to say with any certainty whether the recordings made by Mrs X would have been different if the Council provided the correct information about noise from DIY. However, the Council reviewed the recordings as part of its consideration of Mrs X’s complaint and used its professional judgement to decide no statutory nuisance existed. I appreciate Mrs X does not agree with this assessment but the Ombudsman is concerned with administrative process and not the merits of decisions properly taken. An experienced officer completed the review and was entitled to reach the decision that no statutory nuisance existed.
28. I appreciate Mrs X has lost her faith in the Council due to the fault in how it handled her case. The Council said Mrs X should use the noise app and submit recordings if the noise continues. Mrs X told me the noise did continue but she decided not to report this to the Council. I cannot criticise the Council for not taking action in any period the noise is not reported.

There has been fault in this case which the Council acknowledges. It has apologised to Mrs X for its fault. I am also pleased to note that it is no longer allocating nuisance complaints on a geographical basis but instead has four experienced officers dealing with such complaints. This should prevent similar problems occurring in the future.

Agreed action

29. As a result of the fault identified in this case, Mrs X was put to avoidable time and trouble in pursuing a complaint. The Council raised her expectations that it would take action against the neighbour when in fact it could not. To remedy this injustice the Council agrees to pay Mrs X £250 within one month of my final decision.

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Final decision

30. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman