Summary: The Ombudsman will not investigate Mrs X’s complaint that the Council has failed to properly deal with her complaints of noise nuisance. Any complaint about the Council’s actions prior to October 2018 are late and it is unlikely we would find fault in the Council’s decision not to take formal action.

The complaint

1. The complainant, Mrs X, complains the Council has failed to properly deal with her complaints of noise nuisance by a nearby business. She says this has caused her and her husband stress.

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The Ombudsman’s role and powers

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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I reviewed Mrs X’s complaint and the Council’s responses. I shared my draft decision with Mrs X and considered her comments.

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What I found

6. Councils must look into complaints about noise that could be a ‘statutory nuisance’. If a council decides a statutory nuisance exists, or will happen in the future, it must issue an abatement notice. This requires whoever is responsible for the noise to stop or restrict it. If the person does not comply with the abatement notice the council may prosecute and fine them.
7. Mrs X has reported issues with noise from a nearby business for several years. The Council issued the business an abatement notice but Mrs X says the noise is ongoing. The Council commissioned a report by an independent consultant who confirmed the noise did not amount to a statutory nuisance and was not therefore a breach of the abatement notice. The report suggested improvements the business could make to further mitigate the impact on nearby residents but Mrs X says it should have done more.
8. The Ombudsman will not investigate this complaint. Any complaint about the Council’s actions from more than 12 months before Mrs X’s complaint to the Ombudsman is late. While a complaint about the Council’s handling of more recent matters is in-time, it is unlikely we would find fault in its decision not to take formal action.
9. The Council sought the opinion of a specialist in noise nuisance and they advised the noise complained of did not amount to a statutory nuisance; the Council has set out how it considered this opinion and the reasons it decided it should not go against it and it is not for us to question this.
10. The Council also set out recommendations from the specialist’s report but because the noise is not a ‘nuisance’ there is no breach of the earlier abatement notice and no basis to issue a new notice. So even if the business decides not to comply with the recommendations the Council cannot take formal action against it.
11. If Mrs X disagrees with the Council’s decision the Council has explained she may take her own private civil action against the business. Whether the noise amounts to a statutory nuisance is ultimately a matter for the courts and while the Council has decided there is not enough evidence to pursue the matter Mrs X is entitled to reach her own conclusions and take her own action.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because part of the complaint is late and it is unlikely we would find fault in the Council’s decision not to take formal action.

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Investigator's decision on behalf of the Ombudsman