Summary: the complainants say the Council failed to properly investigate a complaint of statutory noise nuisance. The Council says it followed its usual practice in line with WHO guidelines. The Ombudsman finds the Council acted without fault.

The complaint

1. The complainants whom I shall refer to as Mr X and Miss Y, complain the Council has failed to:

• Properly and within a reasonable timeframe consider their complaints of statutory noise nuisance from a business near their home:
• Properly consider evidence of statutory nuisance put forward in their diary sheets and properly evaluate the noise recordings;
• Ensure equipment worked properly when installed at their home and avoid errors in setting up the recordings.

2. Mr X and Miss Y say they have continued with complaints to the Council because they say the nuisance is continuing and it is affecting their wellbeing and their enjoyment of their home. They want the Council to take formal action through Abatement Notices to stop the nuisance they say they experience.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. If 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

6. In considering this complaint I have:
• Contacted Mr X and Miss Y and read the information presented with their complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, guidance, and policy;
• Shared with Mr X, Miss Y, and the Council my draft decision and considered their comments before making this final decision.

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What I found

The law and statutory nuisance

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances.’
8. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment, or machinery in the street
• smoke from premises
• smells from industry, trade, or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises.
9. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home, or other premises; and / or
• injure health or be likely to injure health.
10. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
11. Once the evidence-gathering process is complete, the Council’s officers will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The Council’s officers will use their professional judgement to decide whether a statutory nuisance exists.
12. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
13. If satisfied a statutory nuisance is current, has happened or will happen in the future, the Council must serve an abatement notice. Councils may first try to resolve the noise informally before serving a formal notice.
14. An abatement notice tells the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply may lead to prosecution and a fine.
15. The courts have decided some types of noise such as ordinary living noise they will not accept as statutory noise nuisance.

What happened

16. In July 2019 Miss Y complained to the Council about the noise from the neighbouring business premises which prevented her from continuing her studies during the day. Both Miss Y and Mr X say the noise reached a pitch that disturbed their enjoyment of their home and affected their health and wellbeing.
17. In response the Council sent out its standard letter about noise nuisance complaints enclosing diary sheets Council officers need completing to help them decide what further action to take.
18. The Council closed the case on 22 July 2019 not having received the diary sheets from Miss Y and Mr X. The Council then received the diary sheets on 24 July 2019. However, the Council’s officers say the sheets did not give enough detailed information for them to decide whether to investigate. The Council wrote to Miss Y and Mr X on 27 July 2019 setting out the detail needed.
19. Miss Y and Mr X sent in their own logs. In response the Council sent a letter on 29 August 2019 offering to install noise recording equipment. This would record the noise so the Council could decide if it amounted to statutory nuisance.
20. In October 2019, the Council installed the noise recording machine. However, a power cut meant the Council had to visit the same day to install a new sound card. A week later the Council collected the machine and downloaded the recordings.
21. The Council asks the public to record no more than two hours noise. Miss Y and Mr X recorded several hours of noise. Having sampled the noise recordings (but not having listened to all) the Council’s officer emailed Miss Y on 25 October 2019. The Council’s officer explained that in his professional view the noise recorded did not meet the threshold of a statutory noise nuisance.
22. The Council and Miss Y and Mr X entered correspondence exchanging views on whether the noise met the threshold of a statutory noise nuisance. The Council’s officer says he offered to re-install sound recording equipment, but the couple did not take this up. In response to my enquiries the Council says it has offered to install the noise recording equipment for a further time.
23. Miss Y and Mr X remained dissatisfied with the Council’s investigation into the noise they experienced from the neighbouring business. They say often the noise does not end with the close of the business and occurs before the business opens in the mornings. The Council says senior environmental health officers have listened to the recordings and say that in their professional opinion the noise does not meet the threshold of a statutory nuisance. Unless it does then the Council says it cannot start formal action or issue an Abatement Notice.
24. The Council says the business has ended one of its noisier activities in response to the complaint, but Miss Y and Mr X say this has not significantly reduced the impact on them.
25. When installing the noise recording equipment, the Council suggests the householder start the recording when the noise is at its loudest. The machine will then record for five minutes. Miss Y and Mr X sent in over 70 recordings exceeding the limit of two hours the Council suggests. So, the Council looked at the data from the machine which suggested in its view the recordings with the loudest or greatest noise. The Council’s officers listened to sample recordings identified in this way. Miss Y and Mr X say the Council has failed in its duty to protect them from statutory noise nuisance. They say the Council’s failure to listen to all the evidence gathered shows it cannot decide whether the noise on the recordings amounts to statutory noise nuisance. Miss Y and Mr X commissioned independent recordings and noise analysis they believe challenges the Council’s view.
26. In response to my enquiries the Council says its procedures follow common industry practice and comply with World Health Organisation (WHO) guidelines. WHO guidelines influence best practice but do not form statutory guidance the Council must follow. However, the Council has shown where it believes its practice follows the guidance.

Analysis – has there been fault causing injustice?

27. My role is to decide if the Council investigated the complaint of noise nuisance without fault. It is not to decide if a statutory noise nuisance exists or existed. It is not for me to judge between the Council and independent analysists view. If I find the Council at fault, I must decide what the Council should do to put that right.
28. The Council received the noise complaint in June 2019. By August 2019 it had examined Miss Y’s and Mr X’s logs and decided to offer noise recording equipment. The Council offered the next available date for October 2019. Due to the demand for recording equipment a time lag is inevitable. I find the Council acted without avoidable delay in offering the equipment.
29. Whether a noise crosses the threshold to become a statutory noise nuisance is a matter of professional judgement. The Council sends out diary sheets designed to give it information on the time, type, frequency, and duration of the noise so it can decide if it is likely a statutory noise nuisance has occurred. The noise recordings allow it to hear the noise and decide whether the recorded noise would pass the threshold of a statutory noise nuisance. The Council needs evidence that would support its view in court if it is to issue an abatement notice and defend that notice against any challenge.
30. The Council asks householders to only record two hours of the noisiest times. Miss Y and Mr X presented 70 recordings. In their view this extensive bank of recordings showed the noise which they experienced and gave the Council far greater evidence of a statutory noise nuisance than the limit of two hours might give. The Council says its officers do not need so many hours of evidence. The data on the machines enables Council officers to decide which recordings are most likely to show a statutory noise nuisance. The Council’s officers sampled those recordings. That is a professional judgement. I understand why Miss Y and Mr X expected the Council to listen to all the recordings they provided. However, from the data on the machine Council officers chose those likely to show the loudest most disturbing noise. In doing so I find they exercised their professional judgement without fault.
31. The Council has followed its usual practice. In its response it has shown its officers have exercised their professional judgement having before them all relevant information including the sampled recordings. Therefore, I find the Council acted without fault and so I cannot challenge the merits of the Council’s decision on statutory noise nuisance.

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Final decision

32. In completing my investigation, I find the Council acted without fault.

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Investigator's decision on behalf of the Ombudsman