Summary: Mr B complained the Council failed to investigate noise and fumes emitted from a neighbouring property during building works. Mr B said the noise and fumes caused him and his partner to become physically and mentally unwell. The Council was at fault for failing to investigate Mr B’s potential statutory nuisance complaint. The Council has agreed to take action to remedy the injustice caused by its fault.

The complaint

1. Mr B complained the Council failed to investigate noise and fumes emitted from a neighbouring property during building works.
2. Mr B said he and his partner experienced noise and fumes for five months. He reported the noise and fumes caused him and his partner to become physically and mentally unwell. He said they left their tenancy early because of this.

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The Ombudsman’s role and powers

3. 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)
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 considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
6. Mr B and the Council had the opportunity to comment on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. Noise and fumes can be statutory nuisances. To be a statutory nuisance, they must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and/ or
• injure health or be likely to injure health.
8. Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
9. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity, and location of a nuisance when deciding if it is a statutory nuisance.
10. If the Council considers the nuisance a statutory nuisance it must serve an abatement notice under section 80 of the EPA. If the recipient of the abatement notice contravenes or fails to comply with the notice, they may be guilty of a summary only offence.
11. When the nuisance is created by construction works, section 60 of Control of Pollution Act (CPA) gives councils the power to serve a notice imposing requirements about the way construction works are carried out. The notice can specify any of the following:
• a noise level;
• the plant or machinery used;
• the hours when work can be done;
• steps that need to be taken to minimise noise.
12. Those failing to comply with the notice can be prosecuted and fined.
13. This legislation did not change in response to the COVID-19 pandemic.

Council’s statutory nuisance policy

14. I have set out below relevant points from the Council's policy.
15. The Council investigates noise to check if it is causing a statutory nuisance under the Environmental Protection Act 1990. 
16. When it receives a noise complaint, in general it will contact the person responsible and tell them about the complaint.
17. If the noise continues, it will collect evidence by asking the complainant to keep diaries, undertaking site visits, or installing recording equipment.
18. If the noise a statutory nuisance, the Council will act in line with its enforcement policy.

Council’s complaint policy

19. Formal complaint stage 1: The complaint will be handled by the service the complainant is complaining about. The Council aims to provide a response within ten working days.
20. Formal complaint stage 2: If the complainant is still unhappy, they can ask to take their complaint to Stage 2 where it will be looked at by the Customer Feedback Team. The Council aims to respond to complaints within 20 working days at this second stage, if the matter is complex and likely to take longer it will keep the complainant informed.

What happened

21. This chronology includes key events in this case and does not cover everything that happened.

Nuisance complaint one

22. In June 2020, Mr B reported to the Council that building works at a neighbouring house were creating a noise nuisance and emitting fumes.
23. The Council phoned Mr B to discuss the matter. The Council says Mr B was unsure he had the right address for the cause of the nuisance. It says Mr B was going to confirm the address.
24. The Council says it sent letters to Mr B and his neighbour and closed the case until Mr B confirmed the site of the nuisance. The Council could not provide copies of these letters. Mr B said he did not receive a letter from the Council.
25. Mr B said he decided not to continue the nuisance complaint because his neighbour apologised for the disruption.

Nuisance complaint two

26. Mr B complained again in August 2020 about the noise and fumes from his neighbour’s property.
27. The Council spoke to Mr B. The Council said during this conversation it found out the building works at the neighbour’s house were at permitted times of day, between 8am and 4pm. In response to my enquiries, the Council said Mr B did not complain about fumes from the building works.
28. The officer decided that because the building work was undertaken within permitted times of day, no enforcement action would be possible. The officer updated Mr B and closed the case.

Service complaint

29. Mr B complained to the Service. The Service responded in August 2020 and said:
• The noise from the construction works was occurring between 8am and 6pm.
• The equipment in use at the site was conventional construction equipment.
30. It commented:

“Other legislation and case law has established that the noise from construction sites should not be considered as causing statutory nuisance, if carried out at acceptable times, as the noise from construction sites is regulated by other legislation. It is the stated policy of Brighton and Hove City Council that the acceptable time for noise from constriction sites is between the hours of 8am and 6pm. Consequently the noise could not be considered to contribute to a statutory nuisance.”

31. In response to this letter, Mr B formally complained using the Council’s complaint procedure about its failure to investigate his nuisance complaint. The Council said it was considering his complaint at stage 1 of its complaint procedure and aimed to respond in ten working days.
32. Mr B chased the Council for a response. In September 2020, it resent him the response he received from the Service in August 2020. Mr B explained he had made a formal stage 1 complaint after receiving this letter and was still waiting for a response.
33. The Council provided Mr B with a formal stage 1 response in September 2020. Its response was two weeks late and the Council apologised for the delay. The Council stated:
• “…noise limits could only be measured as part of a full acoustic survey of the site. The ombudsman accepts that to carry out such a survey in response to every complaint received would be unreasonably costly”.
• “The noise limit for the period from 8am until 6pm is such that conventional building practices will not give rise to noise levels which will exceed this limit. Consequently, the local authority is not required to carry out any further investigation once it has been established that the building site is only operating between these hours.”
• “[Council officer] made an assumption that the fumes you described in your email were from conventional equipment, and so not likely to be causing nuisance and so not deserving of further investigation. In retrospect further enquiries could have been made at this point to make sure of this, he will be more diligent in future. However, it is often necessary to make such assumptions in nuisance investigations in order to avoid excessive cost.”
34. Mr B was unhappy with the response. The Council sent Mr B a stage 2 response in October 2020. It told Mr B “the noise limit for the period from 8am until 6pm is such that conventional building practices will not give rise to noise levels which will exceed this limit. Consequently, the local authority is not required to carry out any further investigation once it has been established that the building site is only operating between these hours.” It said its decision not to investigate his nuisance complaint was correct.

Enquiry response

35. In response to my enquiries the Council commented, “We acknowledge in hindsight that the responses to the formal complaints about actions taken, gave a lot of information, not all of which was relevant or correct, and this may not have helped the complainant understand the basic reason for not taking action- that the site was operated within acceptable timescales.”

Analysis

36. Under the EPA, councils have a duty to take reasonable steps to investigate potential statutory nuisances. In this case, the Council decided because the building work was being undertaken between 8am and 6pm it did not have a duty to investigate the matter further.
37. The Council’s investigation into Mr B’s noise and fumes complaint should have considered: the impact of the nuisances on Mr B; the intensity; cause; type; duration; noise background levels; and whether the contractor was using the best practical means to minimise the impact the work was having on neighbours, as well as the time of day the noise was emitted.
38. In response to enquiries, the Council said Mr B did not raise concerns about fumes being emitted by the building works. This is not supported by the Council’s stage one response. The Council said its officer did not investigate the fumes because he presumed they were caused by conventional equipment. The Council needed to find out what was emitting the fumes, and consider the type, duration, intensity and location of the fumes before deciding whether it was a statutory nuisance.
39. The Council only considered the time of day the noise was being emitted and made assumptions about the source of the fumes. It used the time of day to gatekeep access to its investigation of potential statutory nuisances under the EPA. Failure to take reasonable steps to investigate Mr B’s potential statutory nuisance complaints was fault.
40. As the Council failed to investigate Mr B’s nuisance complaints, there is uncertainty about whether the noise and fumes would have been considered statutory nuisances. This uncertainty caused Mr B and his partner avoidable distress.
41. When Mr B complained to the Council about its failure to investigate, it gave Mr B misleading and inaccurate information about its duty to investigate these complaints. For example, the Council did not need to undertake a full acoustic survey of the site, it could have followed its own policy and asked Mr B to keep diaries, sent officers to do site visits or supplied recording equipment. The Council accepted it gave Mr B incorrect information in response to enquiries. This was fault.
42. The Council delayed responding to Mr B’s stage 1 complaint. It resent the response Mr B received from the Service prior to making a formal complaint, rather than sending a formal stage 1 response. This was fault.
43. The faults identified in the Council’s complaint investigation raised concerns about its integrity and damaged Mr B’s and his partner’s confidence in the procedure. This caused Mr B and his partner frustration.

Agreed action

44. Within one month of the final decision, the Council will:
• Pay Mr B and his partner £200 each to acknowledge the avoidable distress caused by the Council’s failure to investigate their potential statutory nuisance complaints.
• Pay Mr B and his partner £100 each to acknowledge the avoidable frustrations caused by the Council’s complaint investigation.
• Send guidance to relevant staff. Explain a statutory nuisance can occur at any time, and the time the nuisance occurs is only one of several factors they must consider when investigating a potential statutory nuisance.
45. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

46. I have completed my investigation and uphold Mr B’s complaint. Mr B and his partner were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman