Summary: Mr B has complained about the Council issuing him an abatement notice relating to a noise complaint. He has since appealed the notice and his case will be heard at a magistrates court. We have discontinued our investigation as we have no jurisdiction to investigate a complaint where the complainant has exercised their right of appeal.

The complaint

1. The complainant, who I refer to as Mr B, is making a complaint about being served an abatement notice by the Council for causing a noise nuisance. Mr B believes he has been wrongly accused of causing a statutory nuisance and that the abatement notice is therefore without merit.
2. Mr B says this matter has caused him distress and anxiety and that he cannot live in his home without being falsely accused. As a desired outcome, Mr B wants the Council formally to acknowledge it has no evidence to demonstrate a breach of the Act and to make an apology.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. 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).
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).

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How I considered this complaint

7. I have reviewed Mr. B’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council and applicable policy and legislation. The complainant and Council received an opportunity to comment on my draft decision before I reached a final view.

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What I found

Background and legislative framework

8. A statutory nuisance is defined by the Environmental Protection Act 1990 (“the EPA 1990”) and can include noise disturbances. For noise to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premise; injure health or be likely to injure health.
9. Councils have a legal duty to investigate noise complaints. Where they are satisfied a statutory nuisance exists, they are required to serve an abatement notice, that is, an instruction to cease, or minimise, the disturbance. Whether a statutory nuisance exists is for a professionally qualified Environmental Health Officer to decide following a period of investigation.
10. Generally, the statutory nuisance will need to be witnessed by the Environmental Health Officer (EHO) and he/she will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has actually occurred. It is for the EHO to carry out a balancing exercise weighing up the factors in each case
11. If someone does not comply with an abatement notice, they can be prosecuted and fined. An abatement notice can be appealed at a magistrates’ court.

Chronology of events

12. In July 2020, the Council notified Mr B it was initiating an investigation to determine a nuisance following a complaint being made. It later concluded its investigation saying it had determined a nuisance. The Council warned Mr B if the noise did not cease, it would serve an abatement notice.
13. In May 2021, the Council served Mr B with an abatement notice.
14. In July 2021, Mr B’s appeal against the abatement notice to the magistrates’ court.

My findings

15. By law, I cannot investigate any complaint in circumstances where the complainant could reasonably take their case to court. Mr B has since appealed the abatement notice and his case was heard at a magistrates’ court. I therefore have no legal jurisdiction to investigate any of the issues under complaint. The restrictions I describe at paragraphs 5 and 6 therefore apply.

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Final decision

16. We have no jurisdiction to investigate this complaint. This is because Mr B has exercised his right of appeal by taking his case to a magistrates’ court. I intend to discontinue my investigation.

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Investigator's decision on behalf of the Ombudsman