Babergh District Council (19 018 486)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 28 Sep 2020

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s investigation and decision on her noise complaint, resulting in her continued suffering from noise. The Ombudsman finds no fault in the Council’s investigation or decision making process.

The complaint

  1. Mrs X complains about the Council’s investigation and decision on her noise nuisance complaint. Mrs X says her and her family have suffered noise from a neighbouring property for many years and she has been put to time and trouble assisting the Council with its investigation.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and I considered any comments provided.

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What I found

Environmental Protection Act 1990

  1. A statutory nuisance includes noise that unreasonably and substantially interferes with the use or enjoyment of a home or is likely to injure a person’s health.
  2. A council should take reasonable steps to investigate complaints of statutory nuisance.
  3. If a council decides there is a statutory noise nuisance it should serve an abatement notice or take other steps as it considers appropriate to persuade the person to abate the nuisance. If this is unsuccessful the council should then serve an abatement notice.
  4. If the problem continues the council may gather further evidence to demonstrate a breach of the abatement notice. If the evidence shows the notice is still not being complied with, then the council may take the matter to court. However, a council does not have to take court action.

Council policy

  1. The Council publishes details of its noise nuisance policy on its website.
  2. The Council can help to deal with noise that amounts to a ‘statutory nuisance’ under the Environmental Protection Act 1990. Types of noise which may be a statutory nuisance include noise from domestic properties which becomes persistent and/or intrusive, e.g. music, barking dogs.
  3. The Council cannot take action against general everyday living noises such as dogs barking occasionally, lawnmowers used during the day, babies crying, children playing, slamming doors, walking upstairs and raised voices.
  4. Before taking legal action it must be satisfied that a statutory nuisance exists and that evidence (suitable for a Court) has been gathered to support the case.  It will make a professional judgment about whether the problem fits within the terms of statutory nuisance law.
  5. It will normally send a complainant a log sheet to record details of the noise with dates and times. It also write to the person or organisation to tell them a complaint has been made. This can usually resolve complaints without any further action being taken.
  6. If the noise continues, an officer will assess the log to see if it is something it may be able to assist with.
  7. An officer may visit when the noise occurs to make an assessment, or noise monitoring equipment may be installed in a complainant’s premises.
  8. If it is satisfied there is a nuisance, it will usually serve a statutory noise abatement notice, to prevent recurrence. The notice will require the person to reduce the noise to a level which is not a statutory nuisance, within a reasonable time dependent on the circumstances of the case.
  9. If someone ignores a notice the Council may prosecute.  It can also obtain a warrant from a Magistrate, where appropriate, to seize noise making equipment.
  10. If it does not find evidence of a statutory nuisance, it will advise how a complainant can take action themselves in the Magistrates' Court.

What happened

  1. Mrs X lives next to a residential property which allows up to six people to live together as a single household and receive care. For ease I will refer to this as a “care home” although it is not technically classed as one.
  2. Mrs X has complained to the Council in the past about noise from the care home. The Council explains it first investigated complaints in 2017/2018 which ended with mediation between the care provider and Mrs X, though this was unsuccessful.
  3. Mrs X made a further complaint to the Council in April 2019 regarding allegations about:
    • noise from the residents themselves (voices and sounds),
    • music,
    • balls hitting against hard surfaces and fencing,
    • a resident banging on windows.
  4. The Council has provided a record of its actions to investigate these complaints. In summary:
    • April 2019; the Council sent a letter to the care provider and discussed the complaint. The care provider explained some residents could only communicate through noises or non-verbally, for example by banging on a window when they wanted to go outside. The Council also spoke to Mrs X and sent her noise diary sheets to complete.
    • May; it installed noise monitoring equipment, which it retrieved in June.
    • July; it sent a notice to the care provider requesting information about the noises, to which the care provider responded in August.
    • August; the Council installed further nose monitoring equipment which it retrieved in September. It also continued to receive evidence from Mrs X.
    • October; it sent a 7 day deferral letter to the care provider, warning it would issue an Abatement Notice if the noise from music and bouncing balls did not cease within 7 days.
    • November; the Council met with the care provider to discuss the noise issues. The care provider asked for advice on music noise levels, which it gave. The care provider replaced all footballs with foam balls, moved the goal and laid synthetic turf at the far end of the garden. The Council was satisfied with these measures and so did not issue an Abatement Notice. The Council considered the vocal noises and banging on windows was an involuntary action. However, the care provider said it would place foam barriers around windows at night to reduce the noise.
    • End of November; it visited the site to check sound levels.
  5. In December 2019 Mrs X complained to the Council that the noise continued and questioned why it had not served an Abatement Notice. She questioned why the Council was not taking action in respect of noises made by residents, why the residents had been placed in that home given their issues and why they could not be moved elsewhere.
  6. The Council explained it sent a 7 day deferral letter to the care provider regarding the noise from bouncing balls and music. It was satisfied with the measures taken in response to control the noises to a satisfactory degree and so it did not serve an Abatement Notice. It considers it cannot control the noises from voices and involuntary actions. Further, it has no authority over the placement of residents and Mrs X would have to take this up with the authority responsible for social care.
  7. Mrs X complained again as she did not accept the noises and actions from residents were involuntary.
  8. The Council further explained it considered the noises from voices and involuntary actions to be “normal living noises”. It was satisfied with the actions taken by the care provider to address the noise from bouncing balls and music and so would not take further action in that regard. Although the care provider had offered to install foam barriers around the windows to lessen the noise from banging on windows, it had not requested this action and so could not follow it up or set a timescale. Mrs X could contact the Ombudsman if she remained unhappy.
  9. Mrs X contacted the Ombudsman. She explained she had suffered from the noise for many years though it had become worse in the past 18 months. She had spent significant time gathering evidence and considered it did amount to a statutory nuisance. She felt the Council only refused to take action given the sensitive issue; that the noise was from children with learning disabilities. She has since contacted the council that runs the care home but it said it cannot assist. She therefore considers the Council misled her when it suggested she contact the social care authority.

Findings

  1. On review of the information provided I am satisfied the Council took steps to investigate Mrs X’s noise complaints in line with its policy and the law. The Council contacted the care provider, sent log sheets to Mrs X, installed noise monitoring equipment and visited the site. I find no fault in how the Council investigated the complaints.
  2. It is for the Council to consider the information and evidence and reach its own judgement on whether the noise complained of amounts to a statutory nuisance. The Council has explained why it considers vocal noises and involuntary actions to be normal daily living noises that do not amount to a nuisance. I appreciate Mrs X disagrees, however I find no fault in the Council’s decision making process.
  3. The Council has also explained it considered the noise from music and bouncing balls did amount to a statutory nuisance. It served a deferral letter to persuade the care provider to cease the nuisance and it was satisfied with the action taken. I am satisfied the Council acted in line with its policy and the law and I find no fault.
  4. Mrs X had questions about why those particular residents were placed in that home. I consider the Council was correct to refer such questions to the local authority responsible for social care. If Mrs X asked further questions of that authority or, if it could not assist, this was through no fault of the Council.
  5. I am aware Mrs X continued to report noise nuisance following the Council’s final complaint response. However, I cannot investigate ongoing issues.

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Final decision

  1. I have completed my investigation. This is because I find no fault in the Council’s investigation or decision making process on Mrs X’s noise complaints.

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Investigator's decision on behalf of the Ombudsman

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