The Ombudsman's final decision:
Summary: There is no evidence of fault by the Council. It served an abatement notice when it witnessed noise from Ms B’s generator. It could not take formal action over her complaints about noise from moving rowers on the rivers as there is no law it could use.
- The complainant, who I shall call Ms B, complains the Council served a noise abatement notice on her due to noise from her generator.
- Ms B also complains the Council has said that it is unable to take action over noise from rowing crews on the river and riverbank.
The Ombudsman’s role and powers
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- 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 complain
- I read the papers submitted by Ms B.
- I considered the Council’s comments about the complaint and any supporting documents it provided.
- I gave the Council and Ms B the opportunity to comment on my draft decision.
What I found
- Ms B lives on a boat, moored on the river. She has complained about two issues.
Complaints about noise from her boat generator
- Ms B complains that the Council served a noise abatement notice on her about noise from her generator.
- The Council has sent me records, which show that it first received a noise complaint in April 2018 about the noise from a generator. This complaint was withdrawn.
- In September 2018 the Council received a complaint about generator noise from a different person. The Council sent a warning letter to Ms B. Further complaints were received.
- After a number of complaints from two people the Council witnessed noise nuisance and served an abatement notice on Ms B on 27 February 2019. This notice was withdrawn on 12 March as the officer did not identify the name of the boat in the dark.
- After further complaints and three officers witnessing a statutory noise nuisance from Ms B’s generator, a noise abatement notice was served on 5 April 2019. This notice contained details of how Ms B could appeal to a magistrates court within 21 days. The Council has said that it has received no further noise complaints since the notice was served.
- Councils must look into complaints about noise that could be a statutory nuisance (Environmental Protection Act 1990). So, the Council had to investigate the complaints made against Ms B.
- If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. I can find no fault in the Council’s actions, they responded to noise complaints and acted when a noise nuisance was observed.
- Ms B complains about the noise abatement notice. If she wished to challenge the notice she could have appealed to the magistrates court. As she had a right of appeal to the courts against the notice, I do not intend to investigate the validity of the abatement notice. This is for the courts to do and Ms B could have appealed if she wished to challenge it. I find no fault in the Council’s actions leading up to the service of the notice.
- Ms B complains about piracy (someone boarding or touching her boat without permission). This may be a matter that the police could consider, if Ms B believes that Byelaws have been breached.
Noise complaint about rowers
- Ms B complained to the Council on a number of occasions about noise from rowers on the river.
- The Council has explained on each occasion that law does not give it powers to investigate or take action against noise from moving river boats, as they are not premises. But, it did informally speak to the rowing club and a river management organisation.
- I can find no fault by the Council on this point. The Council has no legislation it can use to take action against noise from voices of rowers (or coaches) or during river events. It has explained her complaints to river organisations, but this is all it can do.
- Ms B complains the Council has discriminated against her, as it served an abatement notice on her but not people rowing on the river. I can find no evidence the Council discriminated against Ms B. Officers witnessed noise nuisance on three occasions so I find no fault in them taking action. They were not able to take formal action against the rowers she complained about
- I have completed my investigation. This complaint is not upheld as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman