Summary: Ms Y complains about the Council’s handling of reports of noise nuisance caused by a food establishment, Food Establishment B, below her property. She says the Council failed to take enforcement action against B following the serving of two noise abatement notices. The Ombudsman finds the Council at fault for failing to clearly decide whether to prosecute B. The Council has agreed to apologise to Ms Y and make her a payment to remedy the injustice caused. The Council has also agreed to make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Ms Y, complains about the Council’s handling of reports of noise nuisance caused by a food establishment, Food Establishment B, below her property. She says the Council:
1. decided to serve a noise abatement notice due to a noisy fan in August 2019, but it has failed to take action to enforce the notice in a timely manner when the food establishment failed to comply with it. She says the Council routinely extends the period for compliance and has failed to resolve the noise issues;
2. incorrectly decided to allow the food establishment to install a new ventilation system, which continues to cause noise; and,
3. delayed in serving a second noise abatement notice because of kitchen noise in January 2020. She says she has experienced no improvement with these noise issues and complains the Council routinely extends the period for compliance.
2. Ms Y says, since the food establishment opened, she has been unable to sleep in her own bedroom at reasonable hours, which has impacted her mental, emotional and physical health. She says she is highly distressed. She says the sleep deprivation has made it extremely difficult for her to do her job properly.
3. Ms Y says she has felt unsupported by the Council due to the delays. She says she has gone to time and trouble chasing the Council to progress her case.

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What I have investigated

4. I have investigated the Council’s actions in relation to parts a to c of Ms Y’s complaint from January 2020 onwards. The last section of this decision explains why I have decided not to investigate further back than this.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)
8. 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

9. I considered the information and documents provided by Ms Y and the Council. I spoke to Ms Y about her complaint.
10. Ms Y and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

What should have happened

Statutory nuisances

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
12. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises

13. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.

14. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
15. 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 officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
16. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices

17. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
18. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
19. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Section 82

20. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
21. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the EPA.

What happened

22. Ms Y lives in a flat above a food establishment, B.
23. At the end of January 2020, the Council served a second noise abatement notice on Food Establishment B due to noise created by preparation work carried out in its kitchen area. This was served following reports of noise from Ms Y. The noise abatement notice gave Food Establishment B 60 working days to comply with the notice.
24. At the beginning of March, Ms Y contacted the Council for an update on the kitchen area noise. She reported further noise from the kitchen. She attached a recording of the noise.
25. Ms Y also asked for an update on the ventilation noise caused by B. The Council had first served a noise abatement notice on B for this in August 2019.
26. The same day, a Council Environmental Enforcement Officer replied to Ms Y. He said there were no further updates regarding progress with the ventilation system. He said he would follow up on the issues she raised with B’s manager, including the manager’s proposal to install a noise absorbing system for the kitchen.
27. Ms Y asked the Council Officer to let her know how long B had to resolve or agree a plan for resolving both the ventilation fan and kitchen noise.
28. A few days later, Ms Y chased the Council for an update. She said the kitchen noise had become much worse and was affecting her ability to sleep. She asked the Officer to confirm:

• the action the Council would consider taking about the kitchen noise;
• the timeframes given to B to comply with both noise abatement notices and the action the Council would take if B did not meet these timeframes; and,
• whether there was any legal action that Ms Y could take.

Council action following the outbreak of COVID-19 in March 2020

29. A few days later in March, the Council Officer replied to say he, B’s manager and the ventilation engineers were meeting virtually the following day due to concerns about COVID-19. The meeting would cover the measures B would take to address the issues complained of. The Officer said he would update Ms Y after the meeting and asked her what she meant by legal options.
30. Ms Y replied to say she thought the Officer was going to give her written information on the legal process of taking B to court.
31. In May, Ms Y emailed the Council to say she had been disturbed by loud music coming from Food Establishment B. She said it was causing her floor to vibrate.
32. In July, Ms Y complained to the Council.
33. In mid-July, the Council sent Ms Y its stage one complaint response. It said:

• Ms Y’s reports of noise nuisance had been responded to appropriately with the serving of two noise abatement notices (in August 2019 and January 2020);
• the Council accepted COVID-19 had caused delays in the Council responding to her complaints;
• COVID-19 had also affected B’s ability to find appropriate contractors to carry out the works to achieve compliance with the notices;
• it accepted it had failed to respond to three of Ms Y’s emails and apologised for this; and,
• the Council committed to following up with B and sending Ms Y an update.

34. In August, Ms Y chased the Council for a response. She asked the Council to provide a clear update on the action it would take to resolve both noise issues.
35. The next day, the Officer replied. He apologised for failing to reply sooner. He said, following easing of COVID-19 restrictions, he had been in contact with B’s manager. He said:

• regarding the ventilation system noise: B had proposed to carry out a cleaning of the whole ventilation system and to install rubber seals and mats where the system attached to the outer wall of the building;
• regarding the kitchen noise: B proposed to install sound absorbing ceiling panels in the kitchen and preparation areas as well as rubber mats in key areas; and,
• the Officer would update Ms Y once he had met B’s manager again and assessed whether the measures had resolved the issues.

36. In September, the Environmental Enforcement Officer emailed Ms Y to say he was meeting B’s manager next week. He said they would discuss the proposals around addressing the noise from the kitchen ventilation system. The Officer said he would write to Ms Y following the meeting. If necessary and once a risk assessment had been completed, the Officer said a visit to assess the noise at her home would be possible.
37. At the end of September, Ms Y chased the Officer for an update.
38. In October, the Officer wrote to Ms Y with an update. He said B had not provided confirmation the rubber mats had been installed, nor had it given any updates on improvements to the ceiling or a further meeting regarding the kitchen ventilation system. The Officer said he was following up on this with B’s manager.
39. In December, Ms Y chased the Officer for an update, including on the meeting on the ventilation system, which she suggested could be held virtually due to COVID-19 restrictions. She said there had been no improvement in the level of noise.
40. At the end of January 2021, Ms Y chased the Council for an update and reply to her last email.
41. The next day, the Officer replied. He apologised for the delay. He said COVID-19 restrictions meant he was not allowed to enter B’s premises to inspect any works carried out internally.
42. Ms Y replied to say members of the public continued to go to B to collect orders.
43. In February, the Officer emailed Ms Y to say he was following up with B’s manager to check what measures had been installed to reduce sound transmission from the kitchen area and to arrange a meeting between them and the ventilation engineers. He said he would update Ms Y the following week to confirm the steps the Council would then take.
44. Ms Y replied to say she had experienced further noise from the ventilation system as it was on the wrong setting. She said she considered the soundproofing to be emergency works, which could still be carried out around COVID-19 restrictions. She suggested the meeting about the ventilation system be done online. She asked the Council about timeframes for B to complete the works.
45. A week later, the Officer wrote to Ms Y. He said:

• he was in discussions with B’s manager around alternative measures to the rubber mats and other steps taken by B to resolve the sound issues. This was because the Officer was not satisfied these measures would resolve matters; and
• B had agreed to carry out a survey of the kitchen ventilation system to assist with establishing how to reduce the speed of air flow through the system, which was the source of the ventilation noise.

46. Ms Y replied to ask why the agreement on soundproofing and outdoor investigations into the fans had not been finalised over the last five months.
47. In March, Ms Y chased the Officer for a response.
48. A few days later, the Officer replied to Ms Y. He said:

• he apologised for the delay in replying;
• COVID-19 had significantly increased the workload of the environmental health team and restricted them from making site visits to both residents and businesses. He accepted this had delayed the Council resolving the noise issues affecting Ms Y;
• regarding the noise abatement notice issued against B in August 2019, B had carried out modifications to the ventilation system at considerable cost to B and with the advice of an acoustic consultant. However, this failed to abate the noise nuisance. The Council had decided not to take enforcement action against B. This was because: COVID-19 restrictions and associated lockdowns had affected the Council’s ability to inspect the new system and address the failings in the system with B;
• regarding the second noise abatement from January 2020, the Officer had decided the proposed rubber tiles would not provide sufficient soundproofing and advised B not to use these. The Officer said he had been looking at alternative options. He had identified a possible suitable alternative solution and had put B’s manager in contact with the relevant company to determine suitability and an estimate of cost. He highlighted that he was confirming the costs would not be too expensive for B; and,
• he was scheduled to meet B’s manager in a few days to look at the ventilation system. He said he would review the noise abatement notices following this and decide timeframes for compliance with his manager.

49. In mid-March, Ms Y complained to the Officer about noise from the ventilation system.
50. Two days later, the Officer replied to Ms Y. He said:

• he had met with B’s manager and the ventilation engineers. They agreed at the meeting that the ventilation engineers would propose further noise mitigation measures and investigate the cause of the noise further;
• the company that the Officer recommended was to provide an estimate on ceiling treatments; and,
• the Officer expected to update Ms Y the following week, but the Council was considering allowing a further six weeks for compliance with both abatement notices.

51. Ms Y replied to ask the Council how many extensions B had already been given and what action the Council planned to take in the case of non-compliance.
52. In June, Ms Y chased the Officer for an update on the meeting with the acoustic engineer.
53. The Officer replied the next day to say he was waiting for B’s manager to confirm availability.
54. Ms Y replied to request a site visit from the Officer to assess the noise issues from the ventilation system. She asked for a stage two complaint response.

Analysis – was there fault by the Council causing injustice?

55. Ms Y complains the Council:
1. decided to serve a noise abatement notice due to a noisy fan in August 2019, but it failed to take action to enforce the notice in a timely manner when the food establishment failed to comply with it. She says the Council routinely extends the period for compliance and has failed to resolve the noise issues;
2. incorrectly decided to allow the food establishment to install a new ventilation system, which continues to cause noise; and,
3. served a second noise abatement notice because of kitchen noise in January 2020. However, she says she has experienced no improvement with this noise issue and complains the Council routinely extends the period for compliance.
56. The Environmental Protection Act 1990 (EPA) states that if someone fails to comply with or contravenes the requirements of a noise abatement notice, without reasonable excuse, then they are guilty of an offence. This can lead to prosecution and a fine.
57. Both noise abatement notices served by the Council gave B a 60-day period to comply with the notices’ requirements. It should have been clear by the end of this period whether the Council had decided B had complied with the notices and, if not, whether it would prosecute B.
58. In response to our questions, the Council explained it had considered taking legal action against B. However, it decided not to pursue this as B had made efforts to comply with the requirements of both notices, including at considerable cost to B. COVID-19 had also affected B’s ability to find contractors to investigate and carry out works. This is in line with the EPA. This says, in certain cases, people who have used the best practicable means to stop or reduce the noise nuisance may be able to use this as grounds for appeal or a defence if prosecuted. (EPA, section 80(7)) Best practicable means involves having regard to local conditions and circumstances and financial implications. It is my understanding, therefore, that the Council has decided not to prosecute B as it considers B has and is taking reasonable steps to prevent or minimise the nuisance. The affect of COVID-19 suggests the Council considered B had a “reasonable excuse” as to why it had not been able to comply with the notices. This is a decision the Council is entitled to make. Without fault in how it made this decision, I cannot question its content.
59. However, I do find the Council at fault in terms of how it communicated this decision to Ms Y and its decision-making around whether to prosecute B. This is based on the following:

• By the end of April 2020, both deadlines for compliance with the noise abatement notices had passed. I would have expected to see clear records of how the Council had decided whether or not to prosecute B. This would include considering a period of noise monitoring to decide whether B had abated the noise. The Council should have clearly communicated its decision to Ms Y. The Council did not do this, which is fault. It is not for the Ombudsman to decide whether the Council should prosecute B or not – this was the Council’s duty. But in failing to make a timely and clear decision, the Council did not discharge this duty. In its stage one complaint response from July 2020, the Council explained the impact of COVID-19 on its service and B’s ability to take certain action to abate the noise. However, it did not explain to Ms Y how this affected the noise abatement notices and whether this meant it would not prosecute B. This lack of clear communication and decision-making caused Ms Y uncertainty and distress;
• following the Council’s stage one complaint response, Ms Y continued to chase the Council for clarification on the action it could take and how many extensions it had given B to comply with the notices. Based on the evidence I have seen, the Council first told Ms Y it was not considering prosecution in March 2021 due to the impact of COVID-19. This meant Ms Y had waited almost a year since the deadline of the end of April 2020 for an explanation as to why the Council had not decided to prosecute B. This delay is fault. This meant the Council missed several opportunities over the course of the year to clearly record and explain to Ms Y the reasons it had decided not to prosecute. I find the Council failed to consistently communicate with Ms Y whether extensions for compliance had been granted to B and what the impact of that was. This caused Ms Y further distress and uncertainty. She went to time and trouble asking the Council on several occasions to clarify what enforcement action it could take given the noise issues were ongoing beyond the 60-day period for compliance;
• Ms Y asked the Council on several occasions to take action to inspect and monitor the noise. The Council told us COVID-19 had prevented the Council from doing this. However, it said it had not carried out a risk assessment of Ms Y’s property to assess whether an in-person visit could take place. This is fault. I find the Council failed to consider alternative measures to monitor the noise, such as installing noise monitoring equipment and asking Ms Y to send noise recordings over a set time period. I would have expected the Council to have considered gathering this evidence so that it could inform its decision on whether to prosecute B. This caused matters to drift and caused Ms Y uncertainty; and,
• in early 2020, Ms Y asked the Council to confirm what her legal options were. In these circumstances, I would have expected the Council to have drawn her attention to her right to private action under section 82 of the EPA. Based on the evidence I have seen, the Council did not provide this information in its response to her request. This is fault. Ms Y missed out on receiving this information at an early stage.

60. I, therefore, uphold parts a and c of Ms Y’s complaint as there was fault by the Council causing her injustice.
61. In relation to part b of Ms Y’s complaint, the Council told us B carried out works to the ventilation system in November 2019 to try to comply with the connected noise abatement notice. The Council said the works were successful in addressing the fan motor noise, but created an unexpected noise issue connected with air flowing through the system. The Council said this amounts to a statutory noise nuisance under the first noise abatement notice.
62. I appreciate Ms Y disagrees with the works carried out to the ventilation system. However, while an abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance, it does not state how the person responsible for the noise should achieve this. This means it was for B to decide how to stop or limit the activity causing the noise. I, therefore, do not find the Council at fault in relation to part b of Ms Y’s complaint.
63. Following the works to the system, the Council assessed B had not complied with the requirements of the ventilation system. I have addressed the Council’s actions following this in the paragraphs above.

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Agreed action

64. Within four weeks of my final decision, the Council has agreed to:
1. apologise to Ms Y in writing; and
2. make a payment to Ms Y of £250 to remedy the avoidable distress and frustration she has suffered due its lack of clear decision-making and clear communication with her, including around her rights under section 82 of the EPA. This is in line with the Ombudsman’s published guidance on remedies.
65. The Council should also consider carefully what approach it should take to any further complaint from Ms Y. If it decides not to prosecute B or that B has complied with the notices, it should note clearly why this is.
66. It is not possible for us to set a formal deadline for this last recommendation, as it is dependent on when, and if, the Council receives a further complaint from Ms Y. However, either way, the Council has agreed to report back to the Ombudsman on its progress within three months of the date of our final decision, or sooner if appropriate.
67. Within three months of my final decision, the Council has also agreed to make the following service improvements:
1. circulate guidance to all relevant staff, reminding them to alert complainants to their rights under section 82 of the Environmental Protection Act, at an early stage of any nuisance investigation;
2. circulate guidance to all relevant staff on the importance of clearly recording decisions around whether to prosecute if someone fails to comply with or contravenes the requirements of a noise abatement notice, without reasonable excuse. This should include a reminder of the importance of communicating this decision to complainants; and,
3. share this decision with relevant staff.
68. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

69. I have completed my investigation.
70. I have decided to uphold parts a and c of Ms Y’s complaint because there was fault by the Council causing injustice. The Council has agreed to the above recommended actions, which are suitable ways for the Council to remedy this.
71. I have not upheld part b of Ms Y’s complaint because there was no fault by the Council causing injustice.

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Parts of the complaint that I did not investigate

72. Ms Y complains, since serving the noise abatement notice due to a noisy fan in August 2019, the Council has failed to take action to enforce the notice in a timely manner.
73. Ms Y complained to the Ombudsman in April 2021.
74. The law says 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.
75. Ms Y has explained why she did not complain sooner and I have considered her reasons. In Ms Y’s case, I think that she could have complained sooner if she had wished to pursue matters from 2019. I have, therefore, decided not to investigate earlier than January 2020.

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Investigator's decision on behalf of the Ombudsman