The Ombudsman's final decision:
Summary: Mr X complained about the Council’s investigation into his reports of noise nuisance from a nearby supermarket. Mr X said the matter remains unresolved and the noise is ongoing. The Council was not at fault. It carried out an investigation in line with relevant legislation and policy and decided the noise did not constitute a statutory nuisance.
- Mr X complained about the Council’s investigation into his reports of noise nuisance from a nearby supermarket. Mr X said the matter remains unresolved and the noise is ongoing. He said the noise is causing him and his wife distress, anxiety and depression.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I spoke to Mr X about his complaint.
- I considered the Council’s response to my enquiries.
- Mr X and the Council had an opportunity to comment on my draft decision. l considered the comments before I made a final decision.
What I found
Statutory noise nuisance
- The Environmental Protection Act 1990 (EPA) places a duty on the council to investigate any complaints of ‘statutory nuisance’. The EPA 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.
- Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
- Unreasonably and substantially interfere with the use or enjoyment of a home or other property
- Injure health or be likely to injure health
The Council’s policy
- The Council’s policy states that where the noise is easily witnessed an officer will attend to attempt to witness the noise first-hand. It says where the noise complained about is sporadic and unpredictable then it will issue diary sheets and encourage the use of noise apps using a smartphone.
- The policy states the investigating officer must apply professional judgement to determine whether the noise being complained of constitutes a statutory nuisance. It says a complainant can be sensitised to noise and in these circumstances the officer should apply a test of reasonableness. It says for example noise which is barely audible or occurs very infrequently is unlikely to be judged a statutory nuisance.
- The policy states if an investigating officer is of the opinion that the noise does not amount to a statutory nuisance or is unable to obtain sufficient evidence to prove the existence of a nuisance, they may decide to provide advice but are not obliged to do so.
Community Protection Notice (CPN)
- Under the Anti-social Behaviour, Crime and Policing Act 2014 a CPN is intended to deal with unreasonable, ongoing problems or nuisance which negatively affect the community’s quality of life by targeting the person responsible. The notice can direct the individual, business or organisation responsible to stop causing the problem. It can also require the person responsible to take reasonable steps to ensure it does not occur again.
- The CPN is not meant to replace the statutory nuisance regime. The issue of a CPN does not relieve the council of its obligations to serve an abatement notice under the EPA where the relevant test is met.
- Mr X lives with his wife near a large supermarket. In August 2018 Mr X reported a noise nuisance to the Council. Mr X said he thought the supermarket had carried out some work which had made the noise more noticeable.
- An officer from the Council’s noise team carried out an investigation and identified the source of the noise Mr X complained about as an electrical substation at the rear of the supermarket. Mr X disagreed with the Council’s assessment. He said the noise was coming from the supermarket roof. The officer said his conclusion was that the substation was causing the noise which he witnessed from both inside and outside Mr X’s home.
- The Council served an abatement notice on the supermarket at the end of September 2018. The notice told the supermarket to abate the noise from the substation within seven days. The records show the supermarket carried out insulation works on the substation within that timeframe.
- Following the completed work on the substation Mr X contacted the Council again and said the noise was still affecting him. Mr X repeated his view that the noise was not from the substation but from the supermarket roof. The Council visited the supermarket and confirmed the absence of noise from the substation. Further investigation identified a bakery fan as a possible cause of the noise. The supermarket manager confirmed the fan was not operating as quietly as it should.
- The Council continued to engage with the supermarket about the fan and told Mr X it would need to visit his property to carry out noise monitoring of the fan. The records show the Council wanted to visit Mr X’s property in the early hours of the morning to carry out the monitoring, however Mr X was reluctant and wanted it carried out during the day. The Council explained the early morning visit was necessary as noise at that time would be unreasonable and more likely constitute a statutory nuisance.
- The Council carried out some early morning monitoring at Mr X’s home in November 2018 and confirmed the presence of a low-level humming noise. The records show the Council engaged with the supermarket who agreed to employ the services of an acoustic consultant to identify how best to mitigate the noise. The Council advised Mr X to keep a diary of when and how the noise disturbed him.
- Mr X contacted the Council in December 2018 and said he was unhappy with the progress of its investigation as the noise had not improved and continued to disturb him during the night. Mr X wanted the fans turned off overnight. The Council said the supermarket was investigating the noise from a bakery fan with a view to undertaking additional work and it was satisfied it was taking the matter seriously. The Council reminded Mr X that it would need to carry out monitoring during the night to establish whether a nuisance existed. The Council said without that it could not put pressure on the supermarket to carry out the works any quicker as it considered it was already working at reasonable speed to rectify the matter. The records show Mr X declined a night-time monitoring visit.
- Mr X chased the Council for a response later in December 2018. The Council said both it and the supermarket had worked to investigate Mr X’s reports, and the supermarket was undertaking work to address the noise. However, the Council reiterated that unless it was able to carry out further monitoring from Mr X’s property to establish whether a statutory nuisance existed, it could not put any further pressure on the supermarket. Mr X referred to three previous monitoring visits the Council had already carried out. However, the Council said the supermarket had carried out works since the initial visits. Therefore, it needed to carry out further monitoring to establish whether the ongoing noise amounted to a statutory nuisance. The records show Mr X declined the offer of further noise monitoring.
- The supermarket visited Mr X’s home in late December 2018 and confirmed the noise was in fact from its bakery fan. The supermarket agreed to switch the fan off at night until it carried out proposed works on the fan.
- In January 2019 the supermarket confirmed it had carried out some works on the fan. It said it would undertake further works but did not have a timescale. The Council updated Mr X. The records show Mr X acknowledged that the supermarket had carried works out but did not consider the noise had improved.
- Due to the lack of timescale for the works, the Council served the supermarket with a CPN in February 2019. The notice restricted the supermarket’s use of the fan to between 9pm and 6am each day.
- Mr X continued to report the noise to the Council. The records suggest Mr X reported the noise was inconsistent and less frequent than previously, however he reported it regularly woke him in the early hours of the morning. The Council offered and arranged monitoring visits throughout March 2018 however Mr X either declined or cancelled the visits. The records show Mr X said the inconsistency of the noise would make it difficult for the Council to witness it. The Council provided Mr X with a 24 hour call out service for three days during April, however Mr X made no reports during that time.
- The Council carried out a monitoring visit at Mr X’s home in mid-April 2019. During the visit it arranged with the supermarket for it to turn the fan on and off. The records show neither of the two attending officers could hear anything other than a very slight hum when Mr X’s windows were open. The Council said the level of noise was so low the officers had to strain to hear it, and background noise regularly drowned it out. The officers said there was no change in noise when the fan was on, and the noise readings reflected that. The Council said the noise did not constitute a statutory nuisance.
- Following that monitoring visit the Council informed the supermarket of its conclusion. It said although there was a general hum coming from the supermarket it did not currently consider there was a statutory nuisance. The Council closed Mr X’s case.
- In May 2019 Mr X complained to the Council. He said the noise problem from the supermarket was continuing and he felt let down by the Council’s investigation. He said it had taken too long and complained about the attitude of and communication with one of the investigating officers. Mr X attached a noise nuisance log detailing the level of noise and its impact during April and May 2019.
- The Council responded to Mr X. The Council said it was satisfied it had undertaken a thorough investigation into Mr X’s complaint which took an appropriate amount of time. It said it quickly identified a statutory nuisance and served an abatement notice which resulted in significant work on the substation. The Council said it continued to work with the supermarket about the noise from the bakery fan and served a CPN in the absence of statutory nuisance. It said the EPA does not afford a right to silence. The Council said there was no evidence to support the existence of noise which was a statutory nuisance.
- Mr X was unhappy with the Council’s response and asked to escalate his complaint to stage 2. The Council said it had already apologised regarding Mr X’s complaint about the individual officer. The Council reiterated its comments from the previous response and did not uphold Mr X’s complaint.
- Mr X remained unhappy and complained to the Ombudsman.
- Since complaining to the Ombudsman Mr X has continued to report noise nuisance from the supermarket. Mr X’s noise diary shows the noise is intermittent. The Council continued to offer monitoring visits to Mr X’s home however the records show he did not invite officers to carry one out until September 2019. The Council said it has offered Mr X the use of noise monitoring equipment however to date Mr X has not made a request for it.
- The EPA states councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a statutory nuisance. The evidence shows the Council took appropriate steps in response to Mr X’s reports of noise nuisance from the supermarket.
- It investigated and found a statutory noise nuisance from the substation and in line with legislation and its own policy it served the supermarket with an abatement notice which it complied with within the seven-day timescale. It then continued to investigate and engage with the supermarket about Mr X’s ongoing complaint of noise from the bakery fan. This investigation was lengthy, but the records show was in part due to Mr X’s reluctance to accept monitoring visits which prevented the Council from being able to establish whether the noise was a statutory nuisance. As this was the case, the Council took the steps to serve the supermarket with a CPN restricting its use of the fan during night-time hours.
- The Council’s investigation shows it considered a range of factors including Mr X’s ongoing reports, noise monitoring, noise app records and site visits to the supermarket. The records also show the Council kept Mr X up to date adequately throughout the investigation. The Council has acknowledged there is a low-level humming noise however, decided it does not constitute a statutory noise nuisance. The Council is continuing to engage with Mr X over his ongoing concerns and the offer of noise monitoring equipment remains open to him.
- The Ombudsman is not an appeal body. We cannot criticise a Council’s decision unless there was fault in the way it made the decision. The Council carried out a thorough investigation into Mr X’s complaint of noise from the supermarket in line with the relevant legislation and its own policy. The noise officers used their professional judgement and concluded the ongoing noise Mr X complains about does not constitute a statutory noise nuisance. The Council followed the process we would expect and is not at fault.
- I have completed my investigation. The Council was not at fault.
Investigator's decision on behalf of the Ombudsman