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Birmingham City Council (20 011 373)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 03 Aug 2021

The Ombudsman's final decision:

Summary: Mr B complained about the way the Council investigated his reports of noise and odour nuisance. We did not find fault with the Council.

The complaint

  1. Mr B complains about the way the Council investigated reports of noise nuisance and odour from a nearby food business.
  2. Mr B also says the Council discriminated against him based on where he lives.
  3. He says this caused him and family distress because of the impact of the noise and odour on their quality of life.

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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. 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)
  3. 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

  1. I spoke to Mr B and considered the information he provided with his complaint. I made enquiries with the Council and considered its response along with the relevant law and guidance.
  2. Mr B and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received before making a final decision.

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What I found

Law and guidance

Noise nuisance

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances. To be considered 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.
  2. Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
  3. 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.

Food Standards Agency

  1. The Food Standards Agency (FSA) is responsible for food safety and food hygiene in England, Wales and Northern Ireland. It works with councils to enforce food safety regulations and its staff work in meat plants to check the standards are being met.

What happened

  1. The following chronology is a summary. It does not include everything I reviewed during my investigation.
  2. In May 2020 Mr B complained to the Council about waste, noise and odour from a nearby food business. The Council referred the waste and odour issues to the Food Standards Agency (FSA). It sent Mr B diary sheets to record the noise nuisance. It says these were not returned so it closed the case.
  3. Later in May 2020 Mr B complained again about the noise and odour issues. The Council said the odour issue should be referred to the FSA and the Council would investigate the noise issue.
  4. The Council carried out several site visits in June and July 2020, one with an FSA officer. It did not find any evidence of noise or odour nuisance.
  5. In January 2021 the Council opened a new investigation after a further report from Mr B about noise and odour.
  6. Mr B sent diary sheets to the Council in February 2021.
  7. During a site visit in March 2021 an officer found a fan at the business premises was noisier than they would have expected. They raised the issue with the owner on the same day. This issue was resolved by April 2021.
  8. In another visit in March 2021 an officer said there was noise from a delivery, but they were unable to determine if it would be a nuisance without considering it from inside Mr B’s property.
  9. The Council told Mr B it needed to install noise monitoring equipment in his property to assess for noise nuisance.
  10. The equipment was installed at Mr B’s property in June 2021. The Council assessed the recordings and did not find evidence of a statutory nuisance.
  11. In response to Mr B’s complaint and my enquires the Council said it has, and continues to, properly investigate any complaints it receives. It said the investigation of statutory nuisance complaints is not always a quick process and gathering suitable and sufficient evidence to make a judgement can take time.
  12. The Council said:

“In this case the Council sought to investigate in a prompt manner and the evidence obtained during the investigations has failed to demonstrate the existence of a nuisance and the complaints have been extended to ensure that all of Mr B’s concerns are considered thoroughly”.

My findings

  1. The Council investigated the noise and odour complaint through a combination of site visits and noise monitoring equipment. It also considered all the information Mr B provided. It did not find evidence of a statutory nuisance.
  2. There was no evidence the Council failed to carry out a full investigation of Mr B’s complaints. Therefore, there was no evidence it discriminated against him based on where he lives.
  3. I did not find fault with the way the Council investigated Mr B’s complaint of noise and odour nuisance. I understand Mr B is unhappy with the Council’s decision but as there was no fault in how the decision was reached, I cannot question the professional judgement of the officers involved.

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Final decision

  1. I did not find fault with the Council.

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Investigator's decision on behalf of the Ombudsman

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