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Bournemouth, Christchurch and Poole Council (21 004 178)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 03 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to properly investigate a noise and pollution nuisance and did not take enforcement action to stop it. He also claims the Council discriminated against him. We do not find the Council at fault with its handing of his complaint about nuisances. However, the Council has accepted was at fault by not responding to Mr X’s complaint about discrimination and has now done so and apologised.

The complaint

  1. Mr X complains the Council failed to take appropriate enforcement action to prevent a statutory nuisance affecting the amenity of his home since 2018, despite having many opportunities to do so.
  2. He also complains about discrimination by Council officers when dealing with this matter.
  3. He says the prolonged impact of noise and fumes have affected his health and well-being.

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What I have investigated

  1. The issue that led Mr X to complain to the Ombudsman first occurred in 2018.
  2. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are clear and compelling reasons to do so.
  3. I see no reason why Mr X could not have complained much earlier regarding his initial report of noise nuisance that was investigated by the Council in 2019. This part of his complaint is therefore late, and the Ombudsman will not exercise its discretion to investigate earlier events.
  4. Therefore, I have only investigated the Council’s actions since July 2019. I have only referred to what happened before to explain the context behind the more recent complaint.

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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. 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)
  3. 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)
  4. 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 spoke with Mr X and considered the information he provided. I also made enquiries of the Council and reviewed its files.
  2. Mr X and the Council had an opportunity to comment on a draft version of this decision. I considered comment received before reaching this final decision.

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What I found

Relevant legislation

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances.
  2. For a council to consider something a statutory nuisance, it must:
  • unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
  • injure health or be likely to injure health.
  1. Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
  2. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity, and location of a nuisance when deciding if it is a statutory nuisance.
  3. If the Council considers the nuisance is a statutory nuisance it must serve an abatement notice under section 80 of the EPA. If the recipient of the abatement notice breaks or fails to comply with the notice, they may be guilty of a summary only offence.

COVID-19 pandemic

  1. From March to May 2020, England was in the first of three national lockdowns. People could only leave their home for limited purposes including travelling to and from work, but only where this was necessary. In May 2020, the Government said people who could not work from home should return to the workplace. In September 2020, the Government announced new restrictions including working from home. A second national lockdown came into force from November to December 2020. The third national lockdown was in place from January to March 2021.

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.
  2. Mr X moved into his current property several years ago. He lives next door to a shop that has external extractor fans. Mr X says these are extremely noisy and emit unpleasant fumes and smells, often for prolonged periods during the day and night.
  3. Mr X first reported this nuisance in October 2018. The shop owner agreed to move one of the fans and so the case was closed. Mr X says this did not happen.
  4. In July 2019 he reported this nuisance again to the Council because it was affecting his health and could no longer have his windows open and enjoy his garden. The Council responded by installing noise monitoring equipment. Unfortunately, this was faulty and so the officer offered to use a handheld device instead. Mr X declined both this and the offer to try again with the repaired noise monitoring equipment.
  5. Mr X complained again in April 2020. The Council explained it was limited in what it could do because:
  • Covid-19 restrictions prevented home visits and installation of noise monitoring equipment;
  • the Council was unable to seek relocation of fans that were in situ prior to Mr X moving into the property; and
  • there was no evidence yet that a statutory nuisance was occurring.
  1. Despite this, the Council offered to act as intermediary between Mr X and the shop owner to explore possible areas for mitigation of the nuisance.
  2. Once Covid-19 restrictions were lifted, the Council reinstalled the noise monitoring equipment in July 2020.
  3. Unfortunately, the recordings made were unsuitable and the Council asked Mr X to allow further monitoring.
  4. By this time, Mr X became increasingly frustrated about the Council’s failure to act. He complained to the mayor’s officer and suggested this was racially motivated.
  5. The noise monitoring equipment was reinstalled in August 2020. The Council reviewed the recordings and explained to Mr X it needed to carry out a further assessment of background noise in order to assess whether enforcement action could be taken.
  6. Mr X declined because he thought this was unnecessary as the Council should have enough information to proceed. He submitted a letter from his GP, setting out the impact the ongoing nuisance was having in his physical and mental health.
  7. The Council again contacted the shop owner to discuss whether an alternative solution could be found. The shop owner initially agreed to move the fans and/or build an acoustic wall but decided not to do so when he was told this would require planning permission.
  8. Mr X expressed his continued dissatisfaction. The Council explained it needed to complete the noise survey, but this was not possible because new Covid-19 restrictions were again in place.
  9. Once restrictions were lifted, the Council offered to carry out the noise survey in April 2021. As before, Mr X thought this was unnecessary and so complained to the Council. This was considered under the Council’s two-stage corporate complaints procedure. In response the Council said:
  • The shop owner was only obliged to move one of the fans that had been installed after Mr X’s occupation and this had been done in 2018.
  • There was insufficient evidence to serve an abatement notice.
  • A further noise assessment had been offered on three occasions and declined.
  • Mr X was invited to accept this offer.
  1. Disappointed and frustrated by this response, Mr X complained to the Ombudsman. He says the Council has racially discriminated against him, ignored medical advice and failed to properly investigate the matter. The ongoing nuisance from both noise and pollution emanating from the fans has seriously affected his life.

Analysis

Nuisance

  1. The Ombudsman cannot question the merits of a decision about whether noise, odour etc are statutory nuisances unless there is evidence of fault in the way it was reached.
  2. The Council has provided good evidence to show it responded to Mr X’s reports and has taken reasonable steps to investigate whether a statutory nuisance exists. The Council’s investigations have included site visits and attempts at noise monitoring at Mr X’s property over a period of time. This has not established a statutory nuisance.
  3. Nevertheless, the records show the Council worked with the shop owner on an informal basis to try and achieve an improvement to the problems experienced by Mr X. The Council has kept Mr X informed of these efforts. I see no fault here. It also advised Mr X of his right to private action under the EPA in these circumstances.
  4. While Mr X believes the Council has enough evidence to proceed with enforcement action, I am satisfied this is not the case. The Council has explained to Mr X why further analysis was needed and this is an approach the Council was entitled to take. Where a Council has not found a statutory nuisance, it cannot serve an abatement notice and the Council has explained this several times to Mr X.
  5. It is clear from the chronology that the investigation has been prolonged. However, I do not find the Council responsible for this. It was prevented from carrying out home visits for many months due to Covid-19. As soon as restrictions were lifted, the Council offered to move the case forward. At other times, Mr X refused to allow the Council access to his home. I have found no evidence of avoidable delay by the Council.
  6. I can see the Council’s investigation has focussed on Mr X’s specific complaint about noise from the fans. He says the Council has failed to consider the other nuisances caused by the extractor fans, including smells and gases. In response to my enquiry about this the Council has agreed its focus was on noise because:
      1. this was the focus of Mr X’s complaint; and
      2. no fumes/odour were witnessed by officers during site visits.
  7. The Council has agreed to carry out an assessment of whether another statutory nuisance exists if Mr X request this.
  8. I have reviewed the case records and it is clear Mr X’s complaint was primarily about noise nuisance. For this reason, I do not find the Council to be at fault and would encourage Mr X to agree to the Council’s offer to carry out an assessment.
  9. I understand Mr X believes the Council has disregarded medical advice. However, this is not evidence of a statutory nuisance. The Council is only able to proceed with enforcement action if it has evidence that would hold up to legal scrutiny.
  10. Mr X considers officers were wrong to conclude there was no statutory nuisance. But I do not find fault with the process leading to the Council’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 officers to establish whether there was a nuisance - whether on the basis of their own personal observations or through use of noise recording devices. The decision was a professional one that officers were entitled to make. The Ombudsman cannot question decisions made by officers where all relevant information has been gathered and there was no fault in the process leading to the decision.

Discrimination

  1. In its response to my enquiries, the Council has accepted it did not respond to Mr X’s allegations of racial discrimination and it should have investigated this matter. This was fault. It has now done so, and I consider this is a suitable resolution to remedy any injustice caused to Mr X. The Council has also apologised to him. No further recommendations are necessary.

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Final decision

  1. I have found the Council to be at fault because it did not investigate Mr X’s complaint about discrimination. The Council has now done so and apologised to Mr X. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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