Summary: The Ombudsman will not investigate this complaint about the location of a play park and noise nuisance. This is because further consideration of the complaint is unlikely to find fault by the Council.

The complaint

1. The complainant, who I refer to here as Ms X, complains that a play park was erected near her home by the town council without consultation, that the site is inappropriate and that noise from the park is causing her nuisance and distress.

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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
• we cannot achieve the outcome someone wants.

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

3. We have no power to investigate town councils.

How I considered this complaint

4. I considered information provided by Ms X and the Council. I have also considered Ms X’s comments on the draft decision.

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What I found

Statutory noise nuisance

5. Councils must investigate complaints about matters which could be a nuisance covered by the Environmental Protection Act 1990. These include complaints about noise.
6. For a noise to amount to an actionable statutory nuisance it must cause significant interference to the normal occupation of premises by a person of average sensitivity and it must be caused by some unreasonable or unusual act or omission or behaviour.

What happened

7. The town council erected a play park in an area adjacent to Ms X’s home in 2015.
8. Ms X says that ever since then noise from users of the park have been a nuisance to herself and her neighbours, resulting in health problems. She feels the park is too close to homes occupied by single people and couples and wants it re-located. She also complains that there was no consultation before the park was erected.
9. The town council has taken measures to limit the impact of the noise on Ms X. It has moved picnic benches, re-orientated a slide and erected signage. The town council has been in touch with the housing provider about closing a cut-through near Ms X’s home which channels traffic through the housing estate.
10. A Council environmental health officer installed recording equipment at Ms X’s neighbour’s house for two periods, during wet and dry weather. Ms X feels the officer’s investigation of the noise levels was inadequate, with too much emphasis on decibel readings and that his report did not tally with the neighbour’s diarised observations.
11. The Council states that the environmental health officer found that noise from the park was intermittent and within expected levels at times of heaviest use. It says the officer considered other factors besides decibel readings and ultimately concluded that the noise levels were reasonable and could not be deemed a statutory nuisance.
12. The Council says it will not ask the town council to relocate the park. It says the cost of relocating the park on the same site could not be justified by the relatively small reduction in noise levels. It has recommended building a fence and has advised Ms X to try closing windows or using an alternative outside area to reduce the noise impact.
13. Ms X feels that the town council’s modifications in response to her complaint have had little impact and that the suggestion she might close her windows or use an alternative outside area is unacceptable. She states that her partner had no alternative but to build a large fence and that the Council inadequately assessed the noise recordings.

Assessment

14. I have no power to investigate town councils and therefore cannot investigate the decision to approve the park. Neither can I require the town council to relocate the park.
15. With regards to the issue of ongoing noise, there is little evidence of fault by the Council. Any play park will generate noise and the town council has taken reasonable steps to mitigate the impact on Ms X. The Council has investigated the complaint. The evidence it collected showed there is noise from the park which can be loud at times. But, the Council’s conclusion was that there is no statutory nuisance and this conclusion is evidenced from the recordings. In addition, the Council has provided advice as to how Ms X could reduce the impact of the noise.

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Final decision

16. I will not investigate this complaint because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman