Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s decision that his neighbour is not causing him noise nuisance. This is because there is insufficient evidence of fault by the Council and the Ombudsman cannot investigate late complaints without good reason to do so.

The complaint

1. Mr X complains the Council has failed to stop his neighbours causing noise nuisance. Mr X says he has complained to the Council since 2016 but despite an officer visit and noise monitoring this year the Council has not accepted his evidence or that he is suffering from nuisance. Mr X says his amenity is harmed and he is deprived of sleep. Mr X says the Council should take action and make the neighbours soundproof their property.

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The Ombudsman’s role and powers

2. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
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’. 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
• 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.

(Local Government Act 1974, section 24A(6), 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)

5. 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

6. I have considered Mr X’s information and comments. I have considered information provided by the Council including diary sheets, noise monitoring equipment analysis, the Council’s assessment and correspondence with Mr X. I have considered our 2018 decision on Mr X’s last complaint (reference 17010213). I wrote to Mr X with my draft decision and have considered his response.

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What I found

What should have happened

7. Under the Environmental Protection Act (1990) councils have a duty to investigate complaints of noise which may be a statutory nuisance. For a noise to count as a 'statutory nuisance' it must:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• Injure health or be likely to injure health.
8. Councils have discretion in how they gather information to determine if there is a nuisance. They may, for example, ask the complainant to complete diary sheets, fit noise monitoring equipment, and/or undertake site visits. A council should then write to the complainant and explain its decision and what, if any, action it proposes to take.

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What did happen

9. In February 2018 we closed Mr X’s last noise nuisance complaint to the Ombudsman. There was no fault by the Council in its decision that there was no noise nuisance following his complaints in June 2016 and March 2017.
10. Early in 2018, Mr X raised a new noise complaint with the Council. That June Mr X sent the Council a statement explaining the neighbour’s alterations to their property in 2016 and 2017. He says he now hears every slam of internal doors and cupboards. Mr X says the neighbour’s lifestyle changed and the use of ear plugs does not block out the noise. The Council did not find a statutory nuisance and closed this complaint in September 2018. Mr X confirmed the noise had reduced.
11. In February 2019 Mr X complained to the Council again following an increase in the noise. The Council provided Mr X with diary sheets and advice, in March, on requesting a site visit during working hours should noise occur. It wrote to the neighbour about the matter.
12. Mr X sent the Council diary sheets dated 21 March, 25 April and 7 May. He has also sent the Council emails referring to the neighbour’s family routines, knocking and scraping sounds, changes to the property causing a lack of noise insulation and fortnightly social gatherings disturbing him. Many of Mr X’s reports of noise are during the day or early evening when, as a night shift worker, he needs to sleep.
13. In May the environmental health officer analysed Mr X’s reports of noise between 25 April and 6 May against the noise recordings for that period. For example:
14. On 3 May Mr X recorded two incidents of knocking between 19:17 and 20:25 which woke him up/prevented sleep. The noise monitoring showed ‘muffled male voice faintly audible for a few seconds. Traffic noise in background’. And over a six minute period: ‘Muffled knocking noise 20:20. 20:21 few muffled knocking sounds and brief noise like furniture scraping on floor. 20:22 One muffled knocking sound. Traffic noise in background. Noise level (from noise complained of) not excessive taking into account the volume/duration/time of day’.
15. The officer analysis of the noise monitoring recordings includes: ‘The main noise complained of is impact sound (knocking/banging/scraping sounds). Where such noise has been recorded it is relatively low-level i.e. lower in volume than the background noise from traffic...).
16. On 13 May 2019 the Council wrote to Mr X having assessed the noise monitoring and explained its decision that there was not a noise nuisance. It proposed closing the case on 19 June, subject to the assessment of any further evidence. The case officer says:
1. ‘Having regard to the volume, frequency of occurrence, duration of occurrence and the time of day of each recorded incident of noise from impact sounds and voices, and the nature of the noise, the noise complained of and recorded is not considered to amount to excessive or unreasonable noise…’
2. In my view, the noise recordings do not provide evidence of any deficiency with the sound insulation between your property and the adjoining property…I consider that the noise recorded… is within the limits of what noise levels might reasonably be expected to be audible from a family household in an adjoining terraced property.’
3. There did not appear to be any ‘loud gatherings’ of people…during the two-week period…I therefore suggest that the equipment is booked in for another two week period as soon as possible.’
17. Mr X did not take up the Council’s offer of further noise monitoring. In July 2019 he wrote to the Council and explained that evidence he had acquired showed that the neighbour’s have hardly any furniture and no carpets. The work from some years ago had created a kitchen diner with units fitted into his party wall.
18. On 28 November 2019, the Council wrote to Mr X saying it would investigate his new complaint and would consider putting noise monitoring equipment in Mr X’s property again if he provided diary sheets. It further explains its earlier decision: ‘In any particular case, noise that disturbs sleep may be considered to amount to a statutory nuisance, but this was not the conclusion reached…Normal household noise would not automatically be considered a statutory nuisance on the sole basis that the complainant sleeps during the daytime…’

Analysis

19. We will not investigate Mr X’s complaint for the following reasons:
20. On 8 February we closed our investigation into Mr X earlier complaints of noise nuisance. There is no reason to reinvestigate that period and Mr X has not provided significant information which would raise the need to do so. The building work and alterations at the neighbouring property were understood at that time.
21. The events complained of in 2018 are outside the Ombudsman’s jurisdiction on the 12 month rule (see paragraph 4 above). This includes the Council’s assessment of Mr X’s reports of noise nuisance that year. Mr X did not complain to us again until 23 December 2019 and therefore he complains late. I will not exercise discretion to investigate because Mr X could have complained sooner.
22. There is insufficient evidence of fault in the 2019 assessment. The Council gathered relevant information and considered in detail the nature, duration and time of the noise (see paragraphs 13, 14, 15, 16 and 18 above). It explained its decision to Mr X and dealt with his complaints about sound insulation and social gatherings. It explained why most normal household noise will not be considered a nuisance and its comments are consistent with those of the courts in nuisance cases. Where there is no fault the law says the Ombudsman cannot lawfully question the Council’s decision (see paragraph 5 above).
23. The Council has told Mr X that it will investigate a new complaint of noise nuisance and is willing to undertake further noise monitoring. There is no fault in the Council’s approach.

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Final decision

24. The Ombudsman will not investigate Mr X’s complaint about the Council’s decision that his neighbour is not causing him noise nuisance. This is because there is insufficient evidence of fault by the Council and the Ombudsman cannot investigate late complaints without good reason to do so.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman