Summary: Mr X complained about the Council serving an abatement notice on him without reasonable warning or discussion. We should not exercise discretion to investigate this complaint. This is because it was reasonable for Mr X to appeal the notice to the Magistrates Court which is the proper body to consider appeals.

The complaint

1. Mr X complained about receiving an abatement notice for noise nuisance without prior warning or consultation. He believes the complaint by his neighbour was malicious and the Council over-reacted. He wants the notice to be withdrawn.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response. Mr X has been given an opportunity to comment on a draft copy of my decision.

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What I found

4. Mr X received an abatement notice from the Council in 2020 following complaints by a neighbour about playing loud music. Mr X disputes the allegations and says that the neighbour made complaints about him maliciously because of personal disagreement between them.
5. He says the Council over-reacted to the complaint and that he was not given an opportunity to challenge the allegations or evidence of what grounds the notice was issued on.
6. Abatement notices served under the Environmental Protection Act 1990 carry a right of appeal to the Magistrates Court. Mr X says the 21 days appeal period was too short for him to present evidence and that the Council refused to extend it or withdraw the notice.
7. The 21-day appeal period is a statutory time limit and it is a requirement for the issuing authority to include this in the notice for it to be valid. If Mr X believes the notice was unreasonable he could have appealed it at the time. We will not exercise discretion to investigate the matter now.

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Final decision

8. We will not exercise discretion to investigate this complaint. This is because it was reasonable for Mr X to appeal the notice to the Magistrates Court which is the proper body to consider appeals.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman