The Ombudsman's final decision:
Summary: There was no fault in the Council’s investigation of noise complaints. It considered the evidence and then reached a decision not to issue a Community Protection notice after obtaining two lots of legal advice. This complaint is not upheld. The Council’s decision not to investigate another complaint about low frequency noise as it could not hear it, was also without fault.
- The complainant, who I shall call Mrs X, complains that Council has not adequately investigated her complaint about noise from a neighbour. She complains that the noise causes her loss of sleep.
- Mrs X also complains the Council has not adequately investigated her complaint about low frequency noise.
What I have investigated
- I have investigated Mrs X’s complaints from May 2020 onwards. The final section of this statement contains my reason for not investigating the rest of the complaint.
The Ombudsman’s role and powers
- 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)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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 read the papers submitted by Mrs X.
- I considered the Council’s comments about the complaint and any supporting documents it provided
- Mrs 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
Complaint about noise from neighbour
- Mrs X complained about building noise from her neighbour in 2018 and 2019. These complaints were closed.
- In November 2019, information from the police meant that a new complaint was opened about neighbour nuisance. Mrs X used the Council’s noise app to record the noise from the neighbour in March and April 2020. Two out of the 8 incidents were noted as ‘incidents of substance’. The Council officer issued a formal warning to the neighbour.
- Seven further ‘incidents of substance’ were noted in May, June, August, September and October 2020. Mrs X made over a hundred recordings on the Noise app and noise monitoring equipment was used.
- In October 2020 the Council sent a Community Protection Notice (CPN) warning letter to the neighbour because of the seven incidents. Mrs X’s neighbour put up an offensive sign in his garden, referring to Mrs X. The neighbour removed the sign after a visit from the police.
- In December 2020 and January 20201 the Council officer noted four further incidents of substance. The officer decided to seek advice from the legal department on the suitability of issuing a CPN.
- The legal advice the Council received said that ‘I do believe we have received the level of noise to merit ordinarily the issuing of a CPN if it was other than the festive period. I also have considered one admitted act of ASB with an apology and one proven incident of an unacceptable level of noise. However, the time periods suggest infrequency on the evidentially provable incidents does not justify issuing a CPN. There is no corroborative or other independent evidence, and disturbingly many examples of the allegations being proved to be false and tantamount to harassment. I have serious doubts that it would be reasonable for the Council to take any form of enforcement against the neighbour, without taking enforcement action against Mrs X as well. I do not believe that the Council can be satisfied on reasonable grounds that the conduct of the neighbour is having a detrimental effect on the quality of life of those in the locality, and it is unreasonable, and the conduct is persistent’.
- Further legal advice concluded that it was not appropriate to issue a CPN against the neighbour as the noise complained about did not meet the test of being persistent, continuing and unreasonable.
- A further warning letter was sent to the neighbour in April 2021. The neighbour replied to the Council that Mr and Mrs X had been playing loud music whenever he was in the house. The neighbour said that he did not wish to complain and that he was moving out in a few days.
- My role is to investigate complaints about errors in the Council’s decision making process, not to take a view on whether a decision taken by a Council is right or wrong. Mrs X disagrees with the Council’s decision not to serve a CPN on her neighbour.
- I have looked at all the information. The Council has systematically considered all the evidence supplied by Mrs X. It is clear that it took her complaints seriously and investigated her concerns about noise from her neighbour thoroughly. This included speaking to other neighbours, obtaining two lots of legal advice and writing warning letters to her neighbour. It is also clear that the neighbour considered he had been the subject of harassment from Mr and Mrs X, but chose not to make a formal complaint.
- I can find no evidence of fault in the Council’s investigation of this complaint. The Council considered all the evidence and reached a decision after obtaining legal advice. While I understand the decision was not one Mrs X wanted, it is one it reached without fault.
Complaint about low frequency noise
- The Council said in its response to Mrs X’s official complaint that an officer mistakenly advised Mrs X that they had specialist equipment that could record low frequency noise. The Council apologised for raising Mrs X’s expectations in its complaint response. The Council explained that Mrs X or officers could not hear the noise but her husband could not cope with the low level humming noise he could hear. Mrs X’s husband said that he had heard the low frequency noise at another property.
- I can find no evidence of fault by the Council. From the evidence I have seen there is no evidence that the low frequency noise comes from the neighbouring property, as only one person can hear it and they have heard it at different locations. The Council cannot investigate a noise it cannot hear.
- I have completed my investigation of this complaint as I have found no evidence of fault. This complaint is not upheld.
Parts of the complaint that I did not investigate
- I have not investigated Mrs X’s complaint about events that occurred before May 2020. This is 12 months before Mrs X received a response from the Council’s complaints procedure. These parts of the complaint are late and I see no good reason to accept it for investigation now, as it would have been reasonable for her to complain about events at the time.
Investigator's decision on behalf of the Ombudsman