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Birmingham City Council (19 018 571)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 25 Aug 2021

The Ombudsman's final decision:

Summary: Mr B complains the Council has not taken action on a noise nuisance which is impacting his family. The Ombudsman does not find fault with the Council for not taking further action following its investigation. This is because the Council investigated the alleged noise and collected evidence as to whether the noise was a statutory nuisance before making the decision not to take further action.

The complaint

  1. Mr B complains the Council did not properly consider his evidence of a noise nuisance in its decision not to take action on a nearby factory.
  2. Mr B complains the Council has refused to act, and as a result the noise means his family cannot sleep or enjoy their property.

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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 considered Mr B’s complaint and information provided by him. I also considered information provided by the Council, and the legislation from the Environmental Protection Act 1990. I also considered comments from Mr B and the Council on a draft of my decision.

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What I found

Legislation

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
  2. 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
  1. 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.
  1. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
  2. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
  3. 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.

What happened

  1. Mr B lives in a property that has a factory behind it. The factory operates a food-based business.
  2. Mr B complained to the Council in October 2019 about a persistent noise coming from the factory.
  3. Mr B said the persistent noise happens constantly but is especially disturbing at night and it prevents his family from sleeping properly.
  4. The Council opened an investigation into the noise in November 2019 following Mr B raising his concerns.
  5. The Council asked Mr B to fill out diary sheets of when the noise occurred. The Council also contacted the factory to advise of the complaint that had been made.
  6. Mr B filled out diary sheets showing the noise was present at various times of the day and night.
  7. During Dec 2019 and Jan 2020, the Council placed Mr B on a register for rapid response officers to attend if he called them. This service was supposed to be available to Mr B for six weeks so the Council could sufficiently observe the noise Mr B was complaining about.
  8. However, the Council failed to tell Mr B the rapid response team would be closed for two weeks over the holiday period. Mr B tried to contact the team on a few occasions during this time but did not receive a response.
  9. The Council apologised for not communicating the service was closed over the holiday period. Mr B remained on the rapid response for four weeks following this.
  10. On one occasion, Mr B called the rapid response service at 10pm. Rapid response officers attended Mr B’s house shortly after Mr B called. The two officers determined that although there was a low-level humming noise, it did not qualify as a statutory nuisance.
  11. The case officer handling Mr B’s noise complaint advised Mr B to call again the week after when the case officer was on the rapid response register, so that he could hear the noise for himself.
  12. Mr B called the rapid response team two weeks later at 10pm. Two further officers attended Mr B’s house. Again, the Council determined that the noise was not a statutory nuisance.
  13. During this time, the Council also managed communication between Mr B and a representative of the factory to identify the source of the noise. The factory suggested the noise could be cooling fans or fridges from within the factory and worked with Mr B to turn these off at different times to see if the noise reduced.
  14. Mr B maintained the noise did not change and remained constant. As the noise could not be identified, and it was deemed by the Council as not a statutory nuisance, the Council closed Mr B’s complaint and advised him that he could take civil action against the factory.
  15. Mr B complained to the Council about the lack of action it had taken against the factory. The Council explained that it had not identified a statutory nuisance and therefore it could not take action against the factory.

Analysis

  1. Councils use various methods to identify and investigate statutory noise nuisances. In this case, the Council asked Mr B to fill out diary sheets, placed Mr B on the rapid response register, conducted two site visits and worked with the factory to identify the noise.
  2. Noise monitoring equipment can be used by Councils in some cases. The Council’s reasoning for not using it during the investigation from Mr B’s complaint was that equipment is employed when officers cannot witness the noise. The Council also advised that from a legal perspective, courts rely on the opinions of officers rather than measurements from noise equipment.
  3. As all officers who attended the property agreed there was no statutory noise nuisance, the Council was satisfied it could not take action. The decisions made by the Council officers that the noise was not a statutory nuisance is a professional decision that officers were entitled to make. The Ombudsman cannot question decisions made by officers where all information and evidence has been suitably considered
  4. Mr B complains the noise is at its worst during the night, and that the Council did not attend at the times when the noise was at its peak. I have reviewed the Council’s case notes and the diary sheets provided by Mr B. Council records show Mr B did say the noise was worse after 10pm. Mr B’s diary records show the noise happened during the day and night, but only recorded times and not duration.
  5. The Council officers attended Mr B’s property on both occasions after he rang the rapid response team to alert them to the noise. On both occasions he rang at 10pm, and officers would have tried to attend as soon as possible to give the best chance of witnessing the noise.
  6. As part of my investigation, Mr B provided notes he took during a visit from the rapid response team. Mr B recorded that he asked the officers to visit after midnight, and the officers said they would attend at 10pm. The Council records set out how the officers set out how they considered the noise, and that Mr B had previously described the noise as ongoing. It is therefore my view that it was reasonable for the Council to have attended shortly after 10pm on both occasions. I find no fault with the Council for not attending at a later time.
  7. The Council’s failure to advise Mr B that the rapid response service would be closed for two weeks was poor practice. However, Mr B was able to use the service once it reopened and received two visits from Council officers. I do not consider Mr B to have suffered injustice as the Council’s decision was the noise was not a statutory nuisance.
  8. It is my view the Council took appropriate steps to investigate the noise and reviewed all the evidence before deciding it would not take further action. It also worked with Mr B and a representative from the factory to try and mediate an agreement, although eventually this could not be reached. The Council also implemented best practice by advising Mr B that he could pursue the matter through civil action.
  9. As part of my investigation, I also reviewed planning documents for the factory. There is a current planning condition for times in which the factory can access deliveries. As the noise was recorded by Mr B, the Council and the factory as likely to be linked to fans or coolers for the factory, the planning condition does not apply to this noise.

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Final decision

  1. I have now completed my investigation. I find no fault by the Council in its decision to not take further action on a factory following reports of a noise nuisance. The Council conducted an appropriate investigation and considered all evidence available in its decision.

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Investigator's decision on behalf of the Ombudsman

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