Summary: Mrs C complains the Council failed to take action against a low frequency noise from her neighbour’s hot tub. She said as a result of the noise she experienced stress and her mental health was affected. There was no evidence of fault in the way the Council considered the noise, nor any fault in how it considered Mrs C personal circumstances. And so, we cannot criticise the merits of its decision.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about the Council’s decision not to take formal action against a low frequency noise from Mrs C’s neighbour’s hot tub. She says it failed to properly consider the impact of the noise on her mental health and ability to enjoy her home, in particular during COVID-19.
2. As a result, Mrs C said she experienced stress and her mental health was affected. She also said she had a loss of enjoyment to use her garden.

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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. 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)
5. 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

6. As part of my investigation, I have:
• I considered the complaint made by Mrs C and the Council’s responses;
• I discussed the complaint with Mrs C over the telephone;
• I considered the Council’s responses to my enquiries; and
• I also gave Mrs C and the Council the opportunity to comment on a draft version of this decision.

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What I found

7. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to abate such nuisance. In relation to noise, a statutory nuisance is a “noise emitted from premises so as to be prejudicial to health or a nuisance”.
8. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement taking into account several factors such as the type of activity, locality, time of day, frequency and duration of the noise.
9. The Council is required to investigate complaints of noise nuisance. It will gather evidence to establish whether or not the noise is causing a statutory nuisance. This could involve asking complainants to complete noise diaries, visiting to witness the noise themselves or installing noise monitoring equipment. If the Council finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped. Failure to comply with an abatement notice can result in court action and a fine.
10. 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, which was revised in 2011, 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.
11. Section 82 of the Environmental Protection Act provides for anyone who believes they are suffering a statutory nuisance to take their own private action in the Magistrates Court.

What happened

12. Mrs C lived in a quiet residential area. In 2020 her neighbour installed a hot tub in their garden. The hot tub was connected to a pump which created a low humming noise.
13. Mrs C said she could hear the noise throughout her house and in her garden throughout the day and the night. She said this affected her sleep, and so she spoke with her neighbour. Her relationship with her neighbour was not a positive one, however, the neighbour did turn off the pump during the night.
14. Mrs C said the noise continued to interfere with her enjoyment of her home and her work as she was working from home due to COVID-19. And so, she complained to the Council.
15. In response, the Council wrote Mrs C’s neighbour to tell them it had received a noise complaint and it would investigate. It then considered Mrs C’s concerns and agreed to install noise monitoring equipment to assess the level of the noise. The equipment was in place for two weeks.
16. The Council’s Environmental Health Officer (EHO) reviewed the recordings. She said the recordings showed the noise was a humming noise which appeared to be somewhat intrusive. The EHO also visited Mrs C’s home to inspect the noise. However, because of the type of noise, she asked another EHO with more expertise in low frequency noise to review the recordings.
17. Following the Council’s review of the recordings, it did not find the noise levels could be considered a statutory nuisance. In reaching its view it agreed there was a noise, but it said:
• the noise could only be heard when amplified and background noise was not reflective of normal use of a home;
• it had compared the recordings with the British Standard 8233 (Guidance on sound insulation and noise reduction for buildings). However, the noise recorded was below 35db for most of the time and this is considered a good indoor environment generally;
• as there was no statutory nuisance, it could not take any formal action. However, it acknowledged the stress Mrs C was experiencing and said it would contact her neighbours to suggest how they may limit the noise; and
• Mrs C could consider taking her own civil action against her neighbour in a magistrate’s court.
18. Mrs C was unhappy with the Council’s view. She said the Council should not consider the noise in the same manner as complaints about noise above the 35db level, but as a low frequency and continuous humming noise. She asked the Council to consider the Salford University study and reconsider its view. She also said the EHO had led her to believe the outcome would be in her favour.
19. In response the Council reviewed the case. It apologised if it had misled her and agreed for the EHO officers to visit her home again to inspect the noise. It also installed noise monitoring equipment for a second time. It said it would not normally install the equipment in a kitchen but accepted that this would be appropriate in this case as Mrs C used the area for work.
20. In addition, the Council made visits to both Mrs C and her neighbour to inspect the noise. It asked Mrs C to keep daily records of the noise and asked the neighbour to keep a log of when the hot tub pump was on. The Council noted during its visit that:
• the noise could only be heard minimally or not at all in the neighbour’s property.
• the noise could be heard inside Mrs C’s property, but it was significantly quieter when the rear door was closed.
• there was no sound when the hot tub was turned off.
21. The Council collected the noise monitoring equipment and daily records, but its assessment did not find evidence of a statutory nuisance as it did not exceed the noise levels of the Salford University guidance. It told Mrs C the noise is an irritant and likely to cause a disturbance while working from home with the rear door open. However, as this was not a statutory nuisance, it could not take any formal action. The Council again told Mrs C about her right to start her own civil action.
22. The Council also told Mrs C’s neighbour about its decision and provided a list of recommendations they could try to reduce noise levels further.
23. Mrs C was unhappy with the Council’s decision and said it had failed to consider her personal circumstances enough. And so, she complained to the Ombudsman.
24. During our investigation, Mrs C told us she has moved out of the property because of the impact the noise had on her.

Analysis

25. The role of the Ombudsman is not to decide if there is a statutory noise nuisance but to consider whether the Council properly investigated Mrs C’s complaints of noise disturbance.
26. I am satisfied the Council has made appropriate efforts to respond to Mrs C’s complaints of noise. In reaching my view I am conscious the Council:
• considered Mrs C’s complaints;
• installed noise monitoring equipment twice, in total for a four-week period, and assessed this in line with the Salford University guidance;
• inspected the noise in Mrs C’s home and in her neighbours home;
• considered the duration, level and location of the noise;
• provided information about its findings and the options available to her; and
• provided recommendations on how to reduce the noise to Mrs C’s neighbours.
27. In addition, Mrs C said the Council did not consider her personal circumstances enough. However, the evidence provided shows the Council considered the impact the noise had on Mrs C throughout its investigation and acknowledged this in its correspondence with her. It also agreed to discuss options with Mrs C’s neighbour, provided recommendations, and agreed to install noise monitoring equipment twice, including in her kitchen which was not its normal practice. I am therefore satisfied the Council did consider the impact the noise had on Mrs C and her personal circumstances.
28. While I understand Mrs C disagrees with the Council’s decision, I have seen no evidence of fault by the Council. And so, I cannot criticise the merits of its decision.

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Final decision

29. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman