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London Borough of Bromley (19 006 346)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 25 Feb 2020

The Ombudsman's final decision:

Summary: Ms B complains about the Council response to her noise nuisance complaint. She says this caused her an injustice because the noise affected her quality of life. The Ombudsman finds fault with the Council because it delayed in identifying and responding to the statutory noise nuisance. The agreed actions remedy the injustice caused to Ms B.

The complaint

  1. Ms B complains about the way the Council responded to her complaint about a noise nuisance. She says the Council has a lack of understanding and consideration for the distress and impact caused to her by the ongoing issue at her flat.

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The Ombudsman’s role and powers

  1. 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)
  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. 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)

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How I considered this complaint

  1. During my investigation I:
    • reviewed the information Ms B provided;
    • made enquiries with the Council and considered it’s response; and
    • researched relevant law, guidance and council policy.
  2. Ms B and the Council had the opportunity to comment on my draft decision and I carefully considered the comments.

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What I found

Law, guidance and policy

The Environmental Protection Act 1990

  1. The law sets out what constitutes a statutory nuisance. This includes ‘noise emitted from premises so as to be prejudicial to health or a nuisance’ (section 79(g) Environmental Protection Act 1990).
  2. A council has a duty to investigate complaints of a statutory nuisance made by a person living in its area. It also has to take ‘such steps as are reasonably practicable to investigate the complaint’ (section 79(1) Environmental Protection Act 1990).
  3. Environmental health officers investigate reports to the councils about noise and assess the noise levels from premises. They decide whether it is ‘prejudicial to health or a nuisance’. In forming their view officers consider several factors including the level of noise, its duration, frequency, timing and location.
  4. Councils must serve an abatement notice on people responsible for statutory nuisances, or on a premises owner or occupier if this is not possible. This may require whoever’s responsible to stop the activity or limit it to certain times to avoid causing a nuisance and can include specific actions to reduce the problem.
  5. For noise nuisances from premises, the notice can be delayed for up to seven days while the council tries to get the person responsible to stop or restrict the noise.
  6. It is open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.

Council procedure for investigating noise complaints (May 2019)

  1. The Council policy says:
    • Upon receiving a noise complaint to investigate, the investigating officer must prioritise each complaint as high, medium, low or 'other case', according to the type, severity and the extent of its impact in terms of the number of people affected.
    • The complainant(s) must be informed, preferably in writing, of the outcome of the case and if appropriate offered advice on taking private action under Section 82 of the EPA 1990.
    • Where an investigating officer is satisfied a statutory nuisance exists or is likely to occur or recur, the officer must serve an abatement notice under Section 80 of the EPA 1990. Under Section 80(2) the investigating officer has the discretion to defer service of a notice for up to seven days.

What happened

Background

  1. Ms B moved into her flat in March 2019. The flat is situated above a convenience store.
  2. The store opened in 2013, at this time the premises above were offices. In 2015 planning permission was granted to convert the offices to flats. This was conditioned to include an external noise protection scheme recommended by a sound advice acoustics report.
  3. Ms B complained about the noise caused by roller cages being moved across the shop floor during restocking at night. She says this disturbed her sleep.

Chronology

  1. The below chronology is a summary of relevant information it does not include all the information I have reviewed as part of my investigation.
  2. Ms B reported her noise complaint to the Council at the beginning of March 2019. The Council contacted Ms B to discuss her complaint 12 days later. It agreed to attend and install recording equipment at her flat.
  3. The Council met with Ms B and the store manager to discuss the issues and suggestions to reduce the noise, including changes to restocking methods and times.
  4. The first set of recording equipment failed and a second device was installed.
  5. At the beginning of May 2019 officers reviewed the recordings and found a statutory noise nuisance. The Council wrote to the store and advised it had 21 days to resolve the issue or it would serve an abatement notice.
  6. The store recovered the floor within 21 days. Ms B reported the noise continued to disturb her at night and the Council installed recording equipment seven days after the flooring was recovered.
  7. Officers reviewed the recordings and decided there was no longer a statutory nuisance:

‘The nature of the noise has changed, rolling cages across the floor is smoother and does not involve thudding which was present on previous recordings before recovering flooring. The bangs are at a low level, and on their own do not constitute a statutory noise nuisance. Whilst noise from the premises can still be heard it is low level and not a statutory nuisance’

  1. The Council wrote to Ms B and informed her of this decision. It also sent her information about how she can take her own action under section 82.
  2. Ms B was unhappy with the Council’s response and complained to the Ombudsman in July 2019.
  3. In response to my enquiries the Council said:
    • Under building regulations a change of use necessitates compliance with the requirements for sound insulation to walls and floors. In this case, compliance was certified by an approved independent inspector. If it is subsequently proven the building does not comply with sound insulation regulations it would be civil matter.
    • If the suggestion is that it is some element of the building’s construction that is causing, or contributing, to the noise issue then it would be a matter for the building owner.
    • The store did not need permission to move into the unit because it was previously a retail unit. The conversion from offices to residential flats was carried out under permitted development. There was no opportunity for the Council to consider noise impacts for the main conversion.
    • Following comments from environmental health a noise attenuation condition was imposed on the application for additional flats in an extension.
    • The Council recognises that businesses operate in a 24-hour economy and there are no borough or town-centre wide restrictions on deliveries in pace. No conditions were imposed at the planning stage as there was no change of use.

My findings

  1. I could not establish from the Council records what priority it gave to Ms B’s complaint. The information in the Council procedure would suggest it was a high priority case.
  2. The Council procedure says in high priority cases it will call the complainant, visit and investigate (if staff are available) within one day of receiving the complaint.
  3. The Council contacted Ms B on day eight of her complaint, the first set of recording equipment was installed on day 11 and an officer visited on day 18. This does not comply with the Council’s timeframes for responding to high priority cases. This is fault. The delay in response to the initial report meant Ms B was affected by the statutory noise nuisance for longer than she would have been if the procedure had been followed correctly.
  4. I do not find fault with the Council in respect of the faulty recording equipment. The Council could not have known the equipment would fail and when it became aware it took action to resolve the issue.
  5. Once the Council found a statutory noise nuisance it had a duty to serve an abatement notice. The Environmental Protection Act says the Council can delay serving the notice for seven days. The Council delayed serving a notice by 21 days to allow the store to take action. This is fault and caused a further delay, which exposed Ms B to the statutory noise nuisance for longer than necessary.
  6. The Council disagrees with my findings in the above paragraph. It says the action did not cause a delay and its own assessment would be that the prospect of a store suspending night-time restocking for a number of weeks would be negligible and beyond best practical means. It says had an Abatement Notice been served, the practical outcome would have been the same. I disagree, on balance I consider the communication between the store and Council show the store would have complied with a request to limit/ avoid activity at certain times to reduce the impact until the floor was replaced. If it disagreed it could have appealed.
  7. I do not find fault with the Council’s decision in respect of the sound recordings after the store had completed the remedial work. We do not criticise decisions that have been properly taken. Three officers listened to the recordings and found there was no longer a statutory noise nuisance. As there is no fault in how the decision was reached, I cannot question the professional judgement of the officers.
  8. Ms B says the noise levels at night are still an issue and are having a serious impact on her health and wellbeing due to loss of sleep. The Council says the noise is no longer a statutory noise nuisance and therefore it is not required to take any further action. If Ms B continues to experience noise nuisance from the store she can pursue this matter through the courts under section 82 Environmental Protection Act 1990.
  9. Other parts of Ms B’s complaint relating to the sound insulation report and structural issues with the building are not matters the Council are responsible for. I have not made a finding on these aspects of the complaint and Ms B should seek legal advice in respect of these matters.

Agreed action

  1. Within four weeks of my decision the Council will:
    • apologise to Ms B for the faults I have identified; and
    • pay Ms B £300 for the distress caused by the delay.
  2. Within eight weeks of my decision the Council will:
    • Review its procedures to ensure it complies with the legislation for serving abatement notices.

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Final decision

  1. I find fault with the Council which caused Ms B an injustice. The Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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