Summary: Mr D says the Council delayed resolving a statutory noise nuisance. The Ombudsman has found evidence of fault by the Council. It could and should have acted sooner resulting in delays of over two months. The Ombudsman has completed the investigation and upheld the complaint. The Council has agreed to pay Mr D financial redress.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council failed to properly investigate and delayed resolving a statutory noise nuisance in 2019. He also says the Council did not fix a rat infestation problem.

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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’. 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)
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. 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)

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How I considered this complaint

5. I have spoken to Mr D and considered the information he supplied. I made enquiries of the Council and carefully examined its case papers.
6. I shared my draft decision with both parties and considered their comments.

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What I found

What happened

7. Mr D says he first reported a noise nuisance (caused by equipment, including generators, being used by a building development next to his home) to the Council in February 2019. The Council’s records show Mr D was in contact with its Planning Team in March about alleged breaches of planning control. However, his first contact with the Council specifically reporting an alleged statutory noise nuisance was on 8 April 2019. The Council allocated the case to an Environmental Health Officer (EHO referred to as Officer A). Officer A called Mr D on 11 April but did not get a reply. Mr D then chased up progress with the Council the next day. I understand Officer A carried out a site visit on 15 April. The case notes do not give any details. The Council says Officer A saw the equipment running and spoke to the building site manager who agreed to move the equipment within a week. That same day Officer A emailed Mr D stating he would ensure appropriate action was taken. He made no reference to the equipment being moved within a week. Mr D responded that fumes and noise meant his family could not use their back garden.
8. The Council says Mrs D contacted it on 17 April to report the equipment was still in place and being used. It also says Officer A contacted the Site Manager again on 23 April. I cannot see a record of this. On 4 May Mrs D sent Officer A a text message asking him to visit because the noise and fumes were daily. Officer A carried out a site visit on 16 May. He made a record of this visit. He noted the Site Manager would move the equipment and that he told Mr D to report any further problems. On 5 June Officer A closed the investigation because no further complaints had been received.
9. On 16 July Mrs D sent Officer A a text that workmen were on site early and she would call him to discuss. I have no further records on that contact. On 5 August Officer A wrote to Mr D. This was in error; he was actually responding to a different complaint involving building equipment and a rodent infestation. The Council subsequently realised the error and apologised. Mr D wrote back to Officer A and said he had rats in his garden as a result of waste left by the builders. I cannot see any action was taken on that matter.
10. Mr D then made a formal complaint about the handling of his case in August. The Council assigned a different EHO (Officer B) to investigate the case. On 16 August Officer B noted he had visited Mr D and witnessed the noise and fumes from the equipment which was in close proximity to the home. In respect of the rats there were “no excessive accumulations or other attractants” and so not caused by the building company leaving waste around the area. Officer B then contacted the head office of the building company who agreed to look at relocating the equipment. He confirmed this by email. He also chased up the building company on 27 August. He confirmed to colleagues a couple of days later that he would do a further site visit to look again at whether the rat infestation was caused by waste left by the builders.
11. On 28 August the Council replied to Mr D’s complaint. It acknowledged there was some fault and the case should not have been closed in June without Officer A checking to see if the problem had been resolved. The Council apologised. On 30 September Officer B told the Council he thought the noise was a statutory nuisance. Whilst Officer A had not found it met the threshold the fact the equipment was on site longer and the lack of action by the building company meant it was a statutory noise nuisance. On the same day Officer B received delayed notification the building company would relocate the equipment on 9 September. He updated Mr D. The equipment was relocated on 9 September.
12. Mr D continued to correspond with the Council and maintained Officer A should have taken more action. He also continued to refer to a rodent infestation. On 7 October Officer B said he would assist as much as he could if he could find evidence of rats on the building site in close vicinity to Mr D’s home and “that they are likely to be the infestation affecting you” then he could carry out a treatment. Mr D said he would like assistance. A few days later Officer B visited Mr D. There were several rat holes noted within the curtilage of the property. Officer B said he was unable to establish a clear link between the rats and the building work and so the Council could not take formal action.
13. On 19 November the Council sent a further response to the complaint. It had spoken to Officers A and B. Officer A stated that if he had known the equipment would not be moved quickly there would have been a statutory noise nuisance causing a significant impact to Mr D. The Council said Officer A had agreed with the building company to have the equipment moved within a week of the mid-April meeting. It went onto say that if the Council had subsequently served a Noise Abatement Notice this would have allowed 28 days to rectify the issue and so would not have been quicker.
14. On 19 November Mr D asked the Council to escalate his complaint. He received a final response on 20 January 2020. The Council reiterated that Officer A believed an agreement had been reached in April to move the equipment. It apologised for the error in closing the case and offered redress totalling £400. This was based on £75 for four months delay (June to September) and £100 for time and trouble pursuing the complaint. Mr D subsequently said the redress should be higher and disputed how the Council had reached its total. He wanted either £1500 or £1800 for him and his wife including £200 each for time and trouble and money for loss of amenity and distress. I understand the Council increased its offer to £500.

What should have happened

15. The Council has joined with seven local authorities to form Worcestershire Regulatory Services. This includes the Environmental Health Team who consider complaints about noise nuisance and rats.
16. When the Council receives a report of a possible noise nuisance the case is assigned to an EHO to investigate. The EHO may ask the resident to complete diary sheets, to show the nature of the noise problem, carry out a site visit to try and witness the noise or install a digital noise recorder. Recorders are used where an EHO has been unable to witness the noise in person. The Council has to verify whether there is a statutory noise nuisance. An EHO will take account of the type of noise, duration, timings etc. They can look to informally resolve the problem in the first place. If that is not possible then an EHO should consider serving a Noise Abatement Notice which requires the perpetrator to stop the nuisance within 28 days usually.
17. If an EHO considers the noise problem is resolved, they can close the case. I understand since this complaint the Council has updated instructions to EHO’s to check with a complainant before closing a case.
18. If the Council receives a report of a rat infestation caused by someone’s actions an EHO can visit the site. The Officer will need to find evidence that directly shows the alleged perpetrator is responsible. Without evidence the Council cannot take enforcement action and has no duty to carry out any pest control.

Was there fault by the Council

19. The Council has already accepted with Mr D that it was at fault. In particular it recognised that Officer A should not have closed the investigation in June 2019 without checking with Mr D. I have found evidence of other issues with how the case was handled.
20. Officer A failed to make a clear record of his actions on 15 April. The Council says he reached a verbal agreement to have the equipment moved in a week. I have no record to verify this. At a minimum I would expect such a key action to be confirmed by email. In addition, Officer A then failed to check the equipment had been moved by the end of April. He was aware by early may, as a result of contact from Mrs D, the problem was ongoing. He had the option at that point of deciding there was a statutory nuisance and to use a Noise Abatement Notice. He failed to do this or to propose it as an option to the building company to move matters on. He subsequently told the Council that had he known in April the equipment would still be in place after a week it would have constituted a statutory noise nuisance. Instead it took until 16 May for Officer A to visit the site again and obtain an agreement for the equipment to be moved. He did not record a timeframe for this action, which I find a concern given the previous failure by the building company. Furthermore, as the Council has already recognised, Officer A then closed the case in June assuming the problem was resolved. The Council has told me there was some responsibility on Mr D to report ongoing issues. I do not agree in this instance. The onus was clearly on the Council given it was aware there was a statutory noise nuisance and the building company had already failed to meet one deadline. Officer A should have checked, if he had done so he would have seen nothing had happened and would again have had an opportunity to issue a Noise Abatement Notice. Instead no action was taken until Mr D contacted the Council again. Had these faults not occurred it is possible that a Noise Abatement Notice could have been in place with a deadline for early June.
21. In respect of the rat problem, there was a small delay in August because Officer A failed to action Mr D’s complaint. However, Officer B took over the case and visited the site twice. He found no direct evidence to prove the rats were as a result of the building company. Without such evidence the Council cannot take enforcement action and do not have any duty to recompense Mr D for pest control treatments. Whilst there was a small delay, I do not see that was significant and does not impact on Officer’s B assessment of the issue. I appreciate Mr D may disagree with the Council’s decision, but the Ombudsman will not question the merits of such decisions in the absence of procedural fault in how the decision was reached.
22. Mr D also felt the Council should have installed a digital noise recorder at the start of the investigation. The use of a recorder is optional and not a requirement in every noise investigation. In this case Officer A witnessed the noise in person at the outset. This meant there was no need for a recorder as it is used when an Officer is unable to evidence the issue. There is no fault by the Council.
23. Mr D also referred to a lack of co-ordination between Environmental Health and the Planning departments. Both departments operate independently having different remits and working to separate legislation and procedures. As such there is no requirement for an EHO to contact Planning as a matter of course. Where a case is looking at a noise issue it would be for the EHO rather than Planning to resolve. I do not see evidence of fault in this matter.

Did the fault cause an injustice

24. Mr D, his wife and two children were unable to enjoy their garden for the summer in 2019. Because of fault by the Council the nuisance carried on for over three months longer than necessary (start of June through to 9 September).

Agreed action

25. The Council offered Mr D £500 in total I understand. £200 for time and trouble and £75 per month for four months (June to September) delay. I have considered this point and feel the redress should be higher albeit covering a shorter period of just over three months not four. I propose:
• £200 time and trouble;
• £350 for the loss of the use of the garden for the family for the period I identified;
• £150 for distress for the family.
26. That totals £700 so an additional £200 to that already offered by the Council. This takes into account the entire family was impacted by the Council’s errors. Payment should be made to Mr D within four weeks of this case closing.
27. The Council has agreed to the remedy.

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Final decision

28. I have upheld the complaint and completed the investigation.

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Investigator's decision on behalf of the Ombudsman