London Borough of Brent (20 003 885)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 23 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complains the Council has failed to take sufficient action about a statutory noise nuisance and fire risk at his neighbour’s property. He also says he was given incorrect information by the Council about its investigation of his neighbour’s property. The Council is at fault and has caused injustice, for which it has agreed to provide a financial remedy.

The complaint

  1. The complainant, who I refer to here as Mr X, says his neighbour regularly tests loudspeakers in his garden, that this is a statutory noise nuisance, and that the Council has failed to take appropriate action to stop this. He also says his neighbour’s equipment represents a fire risk. Finally, he says the Council has given him incorrect information about its investigation of these matters.

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What I have investigated

  1. I have investigated the Council’s response to Mr X’s complaints about statutory noise nuisance and fire risk at his neighbour’s property and about the provision of incorrect information.

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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. 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

Legislation

  1. Local councils have a legal duty under the Environmental Protection Act 1990 (EPA) to investigate complaints about potential statutory nuisances – including noise - and to take action to remedy them if they are found to be substantiated. In deciding whether a noise problem is a statutory nuisance, environmental health practitioners may consider a number of factors such as the level of noise, its frequency and duration and the time of day or night it occurs.
  2. It is ultimately a matter of professional judgement for the Council officer involved as to whether a noise constitutes a statutory nuisance.

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What I found

Legislation

  1. Local councils have a legal duty under the Environmental Protection Act 1990 (EPA) to investigate complaints about potential statutory nuisances – including noise - and to take action to remedy them if they are found to be substantiated. In deciding whether a noise problem is a statutory nuisance, environmental health practitioners may consider a number of factors such as the level of noise, its frequency and duration and the time of day or night it occurs.
  2. It is ultimately a matter of professional judgement for the Council officer involved as to whether a noise constitutes a statutory nuisance.

What happened

  1. Since February 2019 Mr X has been complaining about his neighbour, who he says runs a business from his property which involves periodically demonstrating or testing commercial loudspeaker equipment. Mr X says the noise represents a statutory nuisance and has caused his family considerable stress.
  2. The Council’s housing team inspected the property in 2019 on suspicion it was an unlicensed HMO (house of multiple occupation). The Council found the property was not an HMO but it assessed that some equipment stored at the property posed a fire risk. The Council subsequently concluded this risk had been addressed.
  3. Mr X has accused the Council’s housing team of providing false information about having accessed the neighbour’s property on one occasion in 2019 and having spoken to different neighbours about noise to the property. Mr X said his security camera did not record the Council’s officers speaking to any neighbours.
  4. The Council has told me it did not access the relevant property but was able to view it from the rear gardens of neighbouring properties. With regards to speaking to the other neighbours, it said its officers parked away from Mr X’s property and spoke to neighbours as they left for work. The Council said it also spoke to a different neighbour who reported they had heard occasional noise lasting a very short time but did not want their details divulged. I do not propose to investigate this further as it is unlikely to change the outcome of my investigation.
  5. The Council’s housing team failed to pass on Mr X’s noise complaint of February 2019 to its noise nuisance team. The police contacted the noise nuisance team but if failed to take action. The Council did not respond for several months to a further complaint Mr X made in August. The Council has acknowledged these faults and offered Mr X £350 in compensation, which he has not yet accepted.
  6. In November 2019 the Council advised Mr X to make recordings of the noise and submit these to the Council. In late January and early February 2020 Mr X recorded noise coming from the property on 10 occasions and supplied these recordings to the Council. The Council then emailed Mr X’s neighbour to advise that it was investigating a complaint about noise from their property. Four days later Mr X advised the Council that the noise was continuing. The Council then sent a letter to the neighbour with identical content to the email already sent. It also called the neighbour, who told the Council the complaint was unreasonable. In March 2020 the Council advised Mr X to make further complaints if the noise persisted. The Council says it received no complaints between March and August 2020.
  7. Mr X or his son submitted further noise recordings in September. The Council then issued his neighbour with a noise abatement notice. Mr X or his son submitted several further recordings in October and one recording each in November and December. Mr X told me he had not received a response to these. He said his neighbour’s equipment was being stored in a wooden lean-to and that in his view, this constituted a fire risk as there was “wiring all over the place”.
  8. In January 2021 Mr X received an email from the noise team. The email said problems had been identified with the previous case officer’s handling of the case and that “the enforcement notice has procedural issues and so will be withdrawn”. It said it would contact the neighbour again in an “advisory capacity” and consider enforcement action if an investigation found any noise nuisance. The email also noted that the Council had deleted a large number of recordings submitted by Mr X as they contained no recorded noise. The Council officer agreed to review any further noise app recordings submitted by Mr X and noted that the team was prioritising cases “where there is persistent or widespread actionable nuisance”.
  9. Mr X was upset by this email. He told me the recordings were not blank. The Council then sent him a letter of apology in which it said aspects of the case have fallen “below the standard of expected intervention”. However, it repeated the content of the email, including stating that it had received large numbers of blank recordings. Mr X was further upset by this letter. In an email to Mr X’s son, the noise team then suggested the blank recordings could be due to a “glitch” in its app for submitting noise recordings.
  10. In response to my draft decision the Council said it had not meant to imply that the blank recordings were Mr X or his son’s fault. It added that investigations by the noise nuisance team had been “stymied and lengthened” by restrictions imposed due to the Covid-19 pandemic at the same time as the service was facing unprecedented demand. It said it had not had a chance to investigate Mr X’s complaints about the enforcement notice and the failure to respond to his recordings and if Mr X had approached its complaints service, rather than the Ombudsman, it would have resolved the issue.
  11. In my draft decision I suggested the Council install noise recording equipment in Mr X’s home. The Council said it did not have such equipment and that the noise recording app was now fit for purpose. I asked Mr X if he had submitted further recordings via the app and he said he had not as the time periods between the noises emanating from his neighbour were now very long.
  12. I asked the Council if Mr X’s business was recognised under planning law and if any conditions had been placed on the terms of use of the premises such as limits on the time of day that noise can be made.
  13. The Council responded that no business activity was registered at the property that “the evidence here is very limited to suggest that a business use is being carried on at the property” and that if a business is being run, it is not of a scale to require planning permission. It said its planning service has investigated the matter and come to the conclusion that the activity in question was “incidental to the enjoyment of the dwelling house”.

In response to my draft decision Mr X sent copies of advertisements posted by his neighbour and photographs indicating the size of loudspeaker used.

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Analysis

  1. The Council’s initial response and remedy to the delay in responding to Mr X’s reports was appropriate. However, since then its investigation of and response to Mr X’s complaints has been inadequate.
  2. The Council failed to respond to noise recordings submitted by Mr X or his son until prompted by us. It then wrote to him and his son to say the recordings were blank and had been destroyed. Mr X was distressed by these letters as he felt the Council may have destroyed valid recordings. The Council then clarified that the blank recordings may have been due to a glitch in its noise recording app.
  3. The Council also served a noise abatement notice which had to be withdrawn as it had not been issued correctly. Mr X was distressed to learn that the Council would again contact the neighbour in an advisory capacity as he felt his neighbour had already been given advice, which had been ignored.
  4. The Ombudsman is entitled to investigate issues pertinent to the original complaint which arise during the course of its enquiries.
  5. As a result of the Council’s failings Mr X has spent time and trouble that could have been avoided. This is injustice to Mr X. The Council has agreed to pay the £350 it initially proposed to pay Mr X and a further £300 to compensate for his additional distress, time and trouble.
  6. Individuals may run a business from home without requiring planning permission, provided the overall character of the dwelling does not change as a result of the business and it remains fundamentally a home. During its visit to Mr X’s neighbour’s premises, the Council concluded that the overall character of the property had not changed. I can see no fault in the way the Council reached its decision. The photographs supplied by Mr X are not evidence that the character of the property has changed or that the Council is at fault.
  7. Mr X has complained that equipment stored in his neighbour’s lean-to represented a fire risk. I recommended the Council conduct a fire risk assessment of the lean-to.

Agreed action

  1. The Council has agreed that within one month of my decision it will:
      1. Pay Mr X £650 in compensation for his time and trouble;
      2. Investigate the fire risk posed by Mr X’s neighbour’s lean-to.

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Final decision

  1. I have completed my investigation with a finding of fault which has caused injustice to Mr X. The Council has agreed to a financial remedy and an investigation of the fire risk posed by his neighbour’s lean-to.

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Investigator's decision on behalf of the Ombudsman

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