The Ombudsman's final decision:
Summary: Mr X complained about the way the Council investigated his complaints about noise from a neighbouring property. He believes the Council is wrong to say that the noise does not constitute a statutory nuisance. I do not consider I can achieve the outcome Mr X wants and intend to discontinue this investigation.
- Mr X complains that the Council has not properly assessed the noise emanating from a neighbouring property. He believes if it did it would recognise that it is a statutory nuisance.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
- there is not enough evidence of fault to justify investigating, or
- we could not add to any previous investigation by the organisation, or
- further investigation would not lead to a different outcome, or
- we cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6))
- The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about, among other things, planning enforcement notices.
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
How I considered this complaint
- I spoke to Mr X and reviewed the documents on file. I reviewed the relevant law and guidance.
- I spoke to a council officer with knowledge of the case.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- The site in question was the subject of complaints in 2017. However, this decision is only concerned with events of 2019, as set out below.
- In December 2019, Mr X reported an issue with noise coming from a neighbouring property.
- In January 2020, a council officer visited. He listened to the noise from Mr X’s living room and balcony. He considered the noise was audible but not a statutory nuisance. He determined the noise was “…not intrusive or continuous, monotone in nature and only during business hours.”
- The officer took measurements using a sound meter. He also visited Mr X’s neighbour’s property to discuss Mr X’s complaint.
- The officer noted that Mr X’s neighbour had built a rear extension without planning permission. This extension housed the machines which caused the noise. The Council considered this should have had planning permission and informed its planning department.
- Mr X continued to complain about noise. The Council responded to Mr X’s complaint again in June 2020. It said officers had visited Mr X’s flat three times. Two of the visits referred to were in 2017 and Mr X, for this and other reasons, did not feel the Council was properly addressing his complaint.
- Mr X asked the Council more specific questions about why it did not consider the noise to be a statutory nuisance. The Council responded by asking Mr X to provide diary sheets for a three-to-four-week period.
- Mr X again said he considered the Council’s assessment of the noise was wrong. He said he had provided diary sheets previously. He complained that officers had not listened to the noise as heard in his bedroom. He said he had lived in the area for ten years. He accepted that it was a noisy area, but insisted that the noise from his neighbour’s property was a continuous whine.
- The Council repeated its request to see recent diary sheets detailing the noise. A Council officer made a further visit to the property in September 2020 and determined that there was no statutory nuisance.
- Meanwhile in September 2020 the Council served a planning enforcement notice on Mr X’s neighbour to remove what it considered to be an illegal structure. It considered that this would also be a way of addressing Mr X’s noise complaint.
- Mr X’s neighbour appealed this action and this is currently being addressed by the Planning Inspectorate.
- Meanwhile, Mr X continued to express his dissatisfaction with the Council’s assessment of the noise. He asked the Council to answer a number of questions again including asking for detail about the time the machines causing the noise were operated. The Council said it understood that the machines were not turned on until 8am and said this had been corroborated by an officer visit.
- In March 2021, Mr X brought his complaint to the Ombudsman.
- On 17 May 2021, the Council sent the findings from a noise report to Mr X. The report said noise monitoring had been undertaken from 31 March to 7 April 2021 and confirmed the Council’s view that there was no statutory nuisance.
- The report set out the Guidance on Sound Insulation and Noise Reduction for buildings. It said that is desirable that external noise levels do not exceed 50decibels, with an upper guideline value of 55decibels, which it said would be acceptable in noisier environments. The guidance also says that these values are not achievable in all circumstances such as city centres or urban areas. The report concluded that noise levels tested at Mr X’s flat did not exceed 50decibelswith the doors open. It also concluded that noise did not exceed 35decibels with the doors closed. It took into account that there was a high level of ambient noise in the area and that the noise did not occur at unreasonable hours.
- I spoke to a Council officer about the content of the report. He said that the sound equipment was installed in Mr X’s property to ensure that an objective reading of the sound Mr X complained of was provided.
- Mr X believes that the Council is wrong to say that the noise emanating from his neighbour’s property is not a statutory nuisance. In his view it is. However, the Council has visited Mr X’s flat on several occasions, it has conducted a noise report and followed proper procedure. This should provide assurance that even if he considers the noise is unacceptable, it is, objectively, not considered to be a statutory nuisance.
- The Council does not say there is no noise but that it is not a statutory nuisance. It has sought to address the issue in other ways, serving a planning enforcement notice on Mr X’s neighbour.
- The role of the Ombudsman is to review the Council’s adherence to procedure, not to substitute the professional judgement of its officers for his own. That a complainant may disagree with a decision made (such as the outcome of an assessment) by the Council does not, in isolation, mean the Ombudsman can uphold a complaint.
- As the evidence suggests that further investigation would not provide a different outcome for Mr X, I am discontinuing this investigation.
Final decision to discontinue
- For the reasons set out in this statement I have decided to discontinue this investigation.
Investigator's decision on behalf of the Ombudsman