Summary: Ms X complained about noise and vibration nuisance from a factory near her home. She is unhappy at the lack of action taken by the Council, and with the conduct of the investigating officer. The Ombudsman found the Council was not at fault in the way it investigated Ms X’s complaints of noise nuisance.

The complaint

1. Ms X complained about noise and vibration nuisance from a factory near her home. She is unhappy at the lack of action taken by the Council, and with the conduct of the investigating officer.
2. The noise and vibration affect Ms X’s sleep and has caused her distress. She wants the Council to carry out a proper investigation.

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What I have investigated

3. I have investigated events since Ms X reported an increase in noise levels in 2020.
4. I have not investigated Ms X’s earlier complaint about events dating back to 2017, as a complaint must be made to the Ombudsman within 12 months. However, I have included details of some of those events for context.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

8. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Environmental Protection Act 1990.
• The University of Salford procedure for the assessment of low frequency noise complaints (February 2005) (Revised December 2011).
• The Council’s procedure for investigating nuisance complaints.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

10. Under section 79 of the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance.
11. For noise to count as a statutory nuisance it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise.
• injure health or be likely to injure health.
12. Councils cannot immediately intervene to stop the noise but need to investigate to establish the nature of the problem. They may ask you to fill in diary sheets to record details of the problem. 
13. There is no set level at which noise becomes a statutory nuisance. Generally, a nuisance will need to be witnessed by an environmental health officer. The officer should come to an independent judgement about whether a statutory nuisance exists by considering factors such as duration, intensity, location, and the time of day it occurs. If an officer decides a statutory nuisance is taking place, they must issue an Abatement Notice.
14. Councils have powers of enforcement under the EPA, which can involve the Magistrates Court. So, if a council serves a notice asking someone to abate a nuisance that person can appeal the notice to the Magistrates Court. For that reason, a council must gather evidence that will persuade a court the action is proportionate and necessary. It cannot therefore act on the complainant’s word alone.
15. Councils could decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation. Councils should have a policy or procedure to explain what it will do.
16. Low frequency noise is noise which occurs at a level just above the hearing threshold. That threshold varies between people. This means while one person may hear it another may not. The University of Salford produced some guidance for the Government on how to assess low frequency noise. This recommends interviewing complainants to establish whether the noise should be described as low frequency, to collect data about the times it occurs, to gather descriptions of the noise and to provide background information to assist analysis. It also provided guidance on measuring and assessing the noise.

The Council’s nuisance procedure

17. When the Council receives a new complaint about nuisance, an assessing officer will decide whether the Council can take action.
18. If the Council can act, letters may be sent to the complainant and alleged offender. Complaints about industrial or commercial premises will be reviewed by a team leader.
19. The Council’s letter to the complainant will include a diary sheet. The Council will use the information the complainant supplies if further investigation is needed. The complainant must return the diary sheet within 8 weeks, or the complaint will be closed.
20. Complainant’s diary sheets are given to investigators, who decide whether the Council should investigate further.
21. If further investigation is needed, the Council will carry out site visits (either during or outside office hours) or install a digital recording device.
22. It is for the investigator to decide the method of investigation. This will include at least three visits to the complainant’s home at times corresponding to the information in the complainant’s diary sheets. This can include installation of recording equipment.

What happened

23. I have summarised below some of the key events leading to Ms X’s complaint. This is not intended to be a detailed account of what happened.
24. Ms X first experienced noise nuisance at her home in December 2016. This was in the form of a loud noise or drone and vibration which Ms X likened to the sound of heavy machinery. The noise was worst at night, and disrupted Ms X’s sleep. She reported this to the Council in February 2017. The Council investigated but closed the complaint in March 2019 as the evidence it gathered about the type of noise, and where it came from, was inconclusive.
25. Ms X went back to the Council on 15 January 2020 because the noise had become louder, deeper, and more regular. She said it was like a deep bass sound, bouncing off her walls. Ms X said this affected her whole house and made her feel unwell when lying in bed.
26. The Council did not respond, so Ms X raised the problem with a local councillor in February. The councillor contacted the investigating officer, who I shall call Officer A, on Ms X’s behalf to ask if a meeting could take place.
27. Officer A emailed the local councillor on 4 February. He said the Council is not able to look into the matter further because it cannot take enforcement action against the business Ms X thinks is responsible. The previous investigation found there may be some LFN, but the results were inconclusive about identifying a source. The noise could be caused by traffic. Officer A pointed out that Ms X suffers from tinnitus, which he considered she should explore further.
28. Officer A telephoned Ms X on 7 February. He did not see any value in re-opening the complaint, because the Council carried out monitoring in May 2018 and the results were inconclusive. Ms X said the monitoring took place more than 12 months ago, and the noise had now changed. Officer A did not consider a meeting would achieve anything.
29. Ms X got back in touch with her local councillor, who met Ms X on 17 February. At the meeting, the councillor took a recording of the noise at a nearby factory which Ms X believed was the source of noise. The councillor sent the recording to the Officer A. On the same day, a neighbour of Ms X emailed the Council to confirm they could hear the noise in Ms X’s home.
30. On 11 March, Officer A met Ms X in her home. Ms X was accompanied by her friend, who supported her claim the noise was now sometimes audible. Ms X disputes this. She told me it was Officer A who confirmed he could hear a noise, not her friend.
31. Officer A agreed to carry out some more noise monitoring to assess whether the noise was a statutory nuisance. However, he told Ms X he was only going to record the audible noise Ms X said she experienced, he was not going to do more recording of low frequency noise.
32. The Council was due to install noise monitoring equipment (NME) in March but had to delay until May because of the COVID-19 pandemic.
33. Officer A visited Ms X’s home to install the NME on 5 May. Officer A and Ms X agree Officer A at first asked Ms X which room she wanted the NME in, so she could access it quickly to record the noise. Ms X asked why that was necessary because the equipment the Council installed in May 2018 recorded LFN automatically. Officer A stressed the Council was not going to measure LFN again. They were only measuring the audible noise Ms X said had increased. At this point Ms X became distressed and upset. Ms X and Officer A gave different accounts of what took place next.
34. Officer A told me Ms X became aggressive and moved towards him, breaching social distancing guidelines, so he left the house. Ms X denies moving towards Officer A. She only moved to the front door after he had left the house.
35. Once outside the house, Officer A told Ms X he ‘could not install the NME if she behaved in that way’. Ms X told me that she asked Officer A if he was still going to install the NME, but he said he ‘could not deal with her when she was like that’. Ms X was upset and slammed the door. Officer A said Ms X screamed at him before slamming the door.
36. Following Officer A’s visit to Ms X’s home, he emailed the local councillor with an account of what happened and to confirm he was closing the investigation. The councillor replied to Officer A, thanking him for his efforts and stating he could not have done any more to help Ms X.
37. On 12 May, Officer A wrote to Ms X telling her he was closing her complaint. He said there were no further actions he could take. He found no evidence of audible noise at Ms X’s home and previous LFN monitoring was inconclusive. Officer A said the Council would not accept Ms X’s outbursts towards him, and other officers, and she had breached social distancing guidelines during his visit.
38. Ms X complained to the Council about Officer A on 25 May. She was unhappy with his handling of the investigation and with his attitude towards her. Ms X said the investigator:
• Did not take her complaint seriously.
• Did not respond to, or act on, her emails throughout the investigation.
• Did not write to her neighbours as promised.
• Did not follow the guidance from the University of Salford.
• Did not take recordings at the times the noise was present.
• Was not sympathetic to the distress she suffered.
39. On 2 July, a second local councillor, who was involved on Ms X’s behalf during the first investigation in 2019, emailed the Council in support of Officer A. They said he had gone above and beyond to look into Ms X’s complaint.
40. The Council sent its first complaint response on 6 July. It said:
• Officer A is experienced in noise complaints and dealing with the public. He sent correspondence to both Ms X and local councillors, which were full, factual, and appropriate. Local councillors have commented on how helpful the investigator was.
• The Council has a statutory duty to investigate nuisance allegations. The noise Ms X complains of does not fit the description of a statutory nuisance. The fact an investigation has taken place shows the Council took her complaint seriously.
• During the Officer A’s visit to Ms X’s house in May, she did not respect social distancing rules and it was correct for him to leave. It found no fault in how Officer A handled the exchange.
• Officer A carried out an investigation into Ms X’s complaint even though the noise did not meet the statutory noise nuisance definition and the Council has no enforcement powers.
• The investigation included Ms X providing diary entries; a visit to her home in office hours; a visit to the business she thought was responsible for the noise; noise recordings over a two-week period; analysis of the results and a significant amount of data – which proved inconclusive; conversations with Ms X, her friend, and local councillors; an offer to share data with Ms X; consideration of information from neighbours; and an offer to record audible noise.
41. The Council said in cases of LFN, enforcement action is not available. It is satisfied its investigation was robust, thorough, and proportionate. It found no fault with Officer A’s actions.
42. Ms X asked the Council to reconsider her complaint because she did not feel she received a full and factual response. She remained unhappy with the investigation and with the explanation about Officer A’s visit to her home in May.
43. The Council sent its stage two response on 31 July. It said:
44. Its stage one response thoroughly addressed Ms X’s complaint.
45. Officer A carried out a thorough investigation under its processes and procedures. Ms X can take independent advice about private action if she wishes.
46. Officer A acted professionally and appropriately by deciding to leave Ms X’s home.
47. Ms X remained unhappy and asked the Council to consider her complaint at stage three. The Council refused and so Ms X brought her complaint to the Ombudsman on 21 September 2020.

The Council’s response to my enquiries

48. The Council told me it appreciates Ms X experiences disturbance and noise, but this case sits outside the remit of the legislation. That means the Council cannot meet Ms X’s expectations. It is satisfied Officer A is suitably qualified and carried out a thorough investigation.
49. Officer A told me Ms X’s complaint is about LFN. He said no audible noise was witnessed which could be assessed as a statutory nuisance. The nuisance in this case is specific to Ms X and will not be experienced by the average person.
50. Officer A told me LFN can occur naturally, or from machinery, and most people cannot hear it. The Council does not have the power to take enforcement action for LFN, or to ask companies to modify production. The Council carried out noise monitoring, but no obvious LFN was measured at Ms X’s home.
51. Officer A said he could see the distress Ms X suffers, and he tried to help, within his enforcement powers, and outside of this by trying to detect LFN.

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Analysis

52. Ms X complained to the Council in May 2020, so I have considered events dating back to May 2019. However, the Council’s first investigation was closed in March 2019, so I have not made any findings about that investigation. Ms X should have brought a complaint about that investigation sooner if she was not happy with the outcome.
53. That first investigation focused on LFN. From what I have seen from the Council’s closing letter, it told Ms X it could not take any enforcement action about LFN and the results were inconclusive about what might be causing the noise. It also said Council officers could not hear any audible noise inside Ms X’s home which could amount to a statutory nuisance.
54. Ms X got back in touch with the Council in early 2020, via her local councillor, when the noise got worse. She was supported by a neighbour, who said he could hear the noise in her home as well.
55. Officer A visited Ms X and could also hear a noise. He therefore agreed to install NME but stressed this was to measure audible noise only and he was not going to reopen the LFN investigation.
56. When Officer A arrived to install the NME, it is clear Ms X got upset because she thought the Council could measure LFN again as well. She wanted the Council to do this to compare the results to its first investigation.
57. Officer A asked Ms X if she still wanted him to install the NME. It appears Ms X said words to the effect that she was not happy, and Officer A had not helped or supported her. Officer A felt Ms X was becoming angry and aggressive, so he left. He said Ms X approached him, against social distancing rules, and he did not feel comfortable. Ms X denied this and told me the Council cannot substantiate this as only her and Officer A were present. She also highlighted an email Officer A sent to a local councillor where he said Ms X had not approached him in a ‘particularly aggressive way’. I do not consider I can come to a view about exactly what happened. Officer A’s personal feelings about the interaction are his own subjective view. I do not consider there is any evidence for me to criticise his decision to leave.
58. Ms X is unhappy with the way Officer A spoke to her, which she felt did not show understanding of her situation. Again, I do not consider I can come to a view on this. I have different accounts from each party of what was said. It is not my role to decide Council staff disciplinary matters. I am satisfied the Council investigated Ms X’s concerns by speaking to Officer A about what happened. It did not think he was at fault and while I appreciate Ms X’s concerns and distress, I have not seen enough evidence to go against that finding.
59. Following the meeting at Ms X’s home in May 2020, Officer A closed the investigation. He repeated the Council could not take any action over LFN and that there was no further action it could take.
60. The Council’s statutory duty is to take reasonable steps to investigate. I consider it has done this visiting Ms X’s house to assess the noise, and by offering to install monitoring equipment.
61. The Council has previously measured and assessed the low frequency noise. Ms X said the Council did not properly follow the University of Salford’s guidance in doing so. That was not part of my investigation, as it happened more than 12 months ago, and Ms X should have complained about it sooner.
62. The Council did consider Ms X’s request to investigate low frequency noise again and provided a reason why it would not do so. I consider it is reasonable the Council refused to investigate again in circumstances where it cannot take enforcement action.
63. It is important for the Council to have strong enough evidence before pursuing enforcement action. In terms of the audible noise, this is something officers will usually need to witness. Officers did not consider the noise Ms X experienced amounted to a statutory nuisance. That is down to the officer’s professional judgement and it is not my role to come to a view about whether a statutory nuisance does exist.
64. Ms X is unhappy visits were not made at times she wanted or when she reported things. Based on the evidence I have seen, that relates mainly to the first investigation, which I have not investigated.
65. Under the Council’s procedure, it is up to the investigator to decide how to assess nuisance complaints. After visiting Ms X’s home as part of the second investigation, the investigator opted to offer noise monitoring. I consider this was in line with the Council’s procedure, as recording equipment can be used instead of visiting the complainant’s home at the times they report the nuisance has taken place.
66. The role of Ombudsman is not to decide if there is a statutory noise nuisance but to consider whether the Council properly investigated Ms X’s complaints of noise disturbance in line with its policy. On the evidence seen, I consider the Council has made appropriate efforts to respond to Ms X’s complaints of noise.
67. The Council accepts Mrs X hears a noise but cannot identify the source and has not found any verifiable evidence of the noise. Without supporting evidence from its investigations, the Council cannot take action. I have not seen evidence of fault in the way the Council investigated Ms X’s complaints of noise nuisance.

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Final decision

68. I have completed my investigation. The Council was not at fault in the way it investigated Ms X’s complaints of noise nuisance.

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Parts of the complaint that I did not investigate

69. I have not investigated Ms X’s earlier complaint about events dating back to 2017, as a complaint must be made to the Ombudsman within 12 months. However, I have included details of some of those events for context.

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Investigator's decision on behalf of the Ombudsman