Summary: Ms X complains the Council did not properly investigate her noise nuisance concerns. She also complains about the Council’s complaint handling. We find no fault with the Council’s investigation into Ms X noise nuisance concerns. We find fault with the Council’s complaint handling. The Council has agreed to apologise.

The complaint

1. Ms X complains the Council did not properly investigate her noise nuisance concerns which she first reported in May 2020. She also complains about the Council’s complaint handling. Ms X says she has been caused distress due to the Council’s inaction, as well as time and trouble as she has had to chase the Council for a response to her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 spoke with Ms X and considered the information she provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Ms X and the Council and considered their comments.

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What I found

Legislation and guidance

8. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential statutory nuisances.
9. For the issue to count as a statutory nuisance, the council must decide it:
• unreasonably and substantially interferes with the use or enjoyment of a home or other premise; and/or
• injures health or is likely to injure health.
10. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officer, generally an environmental health officer, to gather evidence. They may, for example, as the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
11. 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 council officer(s) will use their professional judgment to decide whether a statutory nuisance exists.

Council’s complaint procedure

12. The Council operates a two stage complaint procedure:
• Stage 1 – the Council will acknowledge the complaint within two working days and aim to respond within 15 working days.
• Stage 2 – A senior manager will investigate and aim to respond within 15 working days.

What happened

13. Ms X made a noise complaint about her neighbour in May 2020.
14. The Council sent Ms X a letter the day after her complaint asking her to complete some noise dairy sheets detailing the noise nuisance experienced. The Council also referred Ms X to its website which outlined the Council’s procedure for investigating noise complaints.
15. In June 2020, the Council closed Ms X’s case as it had not received any completed noise diary sheets or heard back from Ms X.
16. In September 2020, Ms X made a complaint about the Council’s lack of action on her noise nuisance complaint. Ms X also sent the Council:
• completed noise diary sheets for April and May 2020, and July to September 2020, and
• noise reports produced from a noise recording phone application.

The Council reopened Ms X’s case.

17. The Council said Ms X’s noise dairy sheets noted:
• Impact noise, such as running, jumping, stomping, dropping objects/ball, bouncing and dragging items.
• Noise was mostly during the day, but with some night time noise.
18. The Council said it considered the noise diary sheets showed the noise arose from ordinary day to day living. The Council also considered the noise reports provided by Ms X, but noted the accuracy of the measurements were likely to be questionable given it used a mobile phone microphone.
19. The Council also considered Ms X’s audio recordings. The Council noted:
• Recordings had been made in different rooms.
• None of the recordings were made at night.
• The recordings contained noise from a young child running across the floor, playing, and of their voice.
20. The Council’s records showed the officer accepted that noise from a young child running or playing might understandably cause annoyance, but it was nonetheless reasonable behavioural noise that did not amount to a statutory nuisance.
21. At the end of September 2020, the Council sent Ms X’s neighbour a letter which advised them that a complaint had been made about the noise coming from the property. The letter asked Ms X’s neighbour to be mindful of those living around the property. The letter also noted the Council would investigate if further complaints were received.
22. The Council updated Ms X in October 2020 to advise her it had written to her neighbour and that her case was still under investigation. There is no evidence the Council told Ms X that it did not consider the reported noise to amount to a statutory nuisance.
23. The Council sent Ms X a stage one response to her complaint at the end of October 2020.
24. In November 2020, the Council considered some further audio recordings provided by Ms X. The Council noted the recordings contained noise of intermittent footfall/running, child voice/screaming, child playing, and two loud impact noises. The Council noted this was not enough evidence of a statutory nuisance. Ms X also asked the Council to respond to her complaint at stage 2.
25. The Council sent Ms X its stage two response to her complaint in January 2021. The Council did not tell Ms X of its decision that there was no evidence of a statutory nuisance. The Council did tell Ms X her case was open, and she could continue to send noise diary sheets.
26. In response to our enquiries, the Council said it would only seek to corroborate the complaint, by visiting to witness the noise directly or use noise monitoring equipment, where there was enough justification.
27. The Council said Ms X’s diary evidence showed the noise had mostly occurred within daytime hours and, when compared with her audio recordings, no unreasonable aspect of the noise or malic was found. Instead, the noise was from a family’s ordinary living, causing impact sounds on their floor that was audible from Ms X’s property.

Analysis

28. The Council has provided evidence of its consideration of the evidence provided by Ms X. This includes consideration of her completed noise diary sheets and her audio recordings. Following consideration of the evidence, the Council decided the noise did not amount to a statutory nuisance as the noise arose from ordinary living.
29. There is no evidence the Council tried to directly witness the noise or to install noise monitoring equipment. However, the Council has explained its reasons for not doing so. It has explained it first assesses the noise as detailed in the noise diary sheet. In this case, the Council was satisfied the noise detailed did not justify any further action as the noise was generated from ordinary living.
30. The Council’s duty is to take reasonable steps to investigate potential statutory nuisances. The Council has provided evidence of the steps it took to investigate Ms X’s noise complaint. Therefore, I am satisfied the Council has complied with its duty.
31. Further, I cannot find fault with the Council’s decision because it has properly considered the available evidence. The Council was entitled to reach a decision that the noise complained about did not amount to a statutory nuisance.
32. With regards to the Council handling of Ms X’s noise complaint, the evidence shows Ms X first contacted the Council in May 2020. The Council has provided evidence it sent Ms X a letter the next day advising her to send noise diary sheets to allow it to progress her complaint. Ms X did not contact the Council until September 2020.
33. I am satisfied that, on balance, the Council did send Ms X the letter. Therefore, I am satisfied the Council did respond to Ms X’s initial complaint without delay.
34. When Ms X contacted the Council in September 2020, the Council’s records showed it appropriately reopened Ms X’s case. An officer then considered the evidence provided by Ms X and determined the noise did not amount to a statutory nuisance.
35. There is no evidence the Council told Ms X of its decision the reported noise did not amount to a statutory nuisance. It would have been good practice for the Council to tell Ms X of its decision, as it would have made it clear to Ms X what action the Council had taken to investigate her noise complaint.
36. Finally, the evidence shows there was some delay in the Council responding to Ms X’s complaint at both stage 1 and 2. The Council should have responded to Ms X’s stage 1 complaint by the end of September 2020. However, it did not respond until the end of October 2020, a delay of around one month. Similarly, the Council should have responded to Ms X’s stage 2 complaint by early December 2020. It did not do so until January 2020, again a delay of around one month.
37. I consider the fault identified caused Ms X some injustice. This is because she was caused time and trouble in chasing the Council for a response to her complaint.

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Agreed action

38. To remedy the injustice caused by the fault identified, I recommend the Council apologise to Ms X for the delay in responding to her complaints at stage 1 and 2.
39. The Council should complete the above within two weeks of the final decision.

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Final decision

40. I find no fault with the Council’s investigation into Ms X’s noise complaint. However, I find fault with the Council’s complaint handling. The Council has accepted my recommendation. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman