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Luton Borough Council (21 001 111)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 03 Nov 2021

The Ombudsman's final decision:

Summary: There was no fault by the Council in a complaint that alleged it did not act to stop alleged noise nuisance from a telecommunications site.

The complaint

  1. I refer to the complainant here as Mr X. Mr X says the Council failed to stop alleged noise nuisance from a telecommunications site.
  2. Mr X says there is noise nuisance from the site varying from tonal sounds to rumbling and whooshing from cooling systems on the site. Mr X says the sounds are audible above ambient noise levels during the day as well as at night.
  3. Mr X says he submitted noise diaries and noise readings taken in his home during the night but the Council insisted on use of its noise app or installation of noise monitoring equipment in his even though neither measure is fit for the purpose. Mr X asked the Council to commission an independent noise test but says it refused. Mr X says his family is distressed and suffer from sleep deprivation.

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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. 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 examined the complaint and background information given to the Ombudsman by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council. I considered Mr x’s comments on it.

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What I found

Noise nuisance law and guidance

  1. Councils must investigate complaints about noise that could be a statutory nuisance under the Environmental Protection Act 1990. The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
  2. For a noise to count as a statutory nuisance it must do one of the following:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises
    • Injure health or be likely to injure health
  3. 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.
  4. 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.

Background

  1. Mr X complained of noise from a site where a telecommunications mast is located.
  2. The Council provided noise diaries for Mr X to record the noise. Mr X completed a diary and returned it to the Council.
  3. The Council’s investigations officer then asked Mr X and his wife’s permission to install noise monitoring equipment inside his home. The officer also made Mr X aware of the Council’s noise app which a complainant could use to record noise on an electronic device and then upload it to the Council through the app.
  4. Mr X’s wife refused permission to install the noise monitoring equipment in their home. She said the Council could install the equipment outside their home or have an acoustic expert carry out noise monitoring. Mr X also wrote to the officer with a similar response. They both asked the officer to take action on the matter.
  5. The officer informed them he had visited the site to assess the noise emanating from it. He said the prominent background noise involved traffic and birdsong. The officer said the means of obtaining evidence of night-time noise was through recordings using the Council’s noise app or installation of noise monitoring equipment. The officer explained the Council’s noise nuisance investigation procedure and gave reasons why he needed recordings from within Mr X’s home.
  6. The officer also explained why the noise recordings taken by Mr X were unreliable. The officer explained that the recordings were unreliable because he could not determine where the noise recorder had been placed as well as the source of the recorded noise.
  7. The officer agreed to meet with Mr X at the site. At the meeting, the officer identified a humming noise from the telecommunications system. However, the officer concluded the noise was not a statutory nuisance. He wrote to Mr X to explain his conclusion.
  8. Mr X complained to the Council about the officer’s decision. The Council affirmed the officer’s approach and conclusion.

Finding

  1. The investigations officer initially gathered evidence on the noise from Mr X in the form of noise diaries. The officer visited the site to assess the noise on his own as well as when he met with Mr X. The officer also sought to gather further evidence through the noise app and installation of noise monitoring equipment. On examination of the Council’s actions in this case, I am satisfied the Council took reasonable steps to investigate Mr X’s allegation of a noise nuisance from the telecommunications site.
  2. I note Mr X considers the officer was wrong to conclude there was no statutory nuisance. I do not find fault with the process leading to the officer’s decision. The law and government guidance are clear that a judgement on whether a statutory nuisance exists is a subjective one. It was for the investigations officer to establish whether there was a nuisance; whether on the basis of his own personal observations or through use of noise recording devices. The decision was a professional one that the officer was entitled to make. The Ombudsman cannot question decisions made by officers where all relevant information has been gathered or officers made reasonable efforts to gather the information.
  3. I note Mr X’s contention that the Council’s noise app or monitoring equipment was universally agreed to be unfit for the purpose. I am satisfied the explanation given by one of the Council’s officers to Mr X’s query about the suitability of the equipment did not amount to the officer stating the equipment was unfit to be used to gather evidence.

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Final decision

  1. I closed this complaint because I did not find fault by the Council in the matters raised here.

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Investigator's decision on behalf of the Ombudsman

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