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Hyndburn Borough Council (21 006 619)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 22 Mar 2022

The Ombudsman's final decision:

Summary: Miss X complains about noise nuisance from building works and late night parties from a neighbouring property. She also complains about anti-social behaviour from her neighbours. She says the Council has not investigated her complaints properly. We find no fault with the Council’s actions.

The complaint

  1. Miss X complains about noise nuisance from building works and late night parties from a neighbouring property, and anti-social behaviour from her neighbours. Miss X says the Council has not investigated her complaints properly and used her health conditions against her by saying the noise affects her more because of her health conditions.

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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 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)
  3. 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 Miss X and considered the information she provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent a draft decision to Miss X and the Council and considered their comments.

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What I found

Environmental Protection Act 1990

  1. Statutory nuisances are defined in section 79 of the Act 1990. A statutory nuisance could include noise emitted from premises so as to be prejudicial to health or a nuisance.
  2. Under the Act, 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. To be considered a statutory nuisance, they 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.
  3. Under the Act, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
  4. 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.

What happened

  1. Miss X raised a complaint about noise nuisance with the Council in 2020.
  2. To investigate the complaints, the Council installed noise recording equipment in Miss X’s home for around a week in June 2020. Miss X also sent the Council audio and video recordings she made of the alleged noise nuisance between May and August 2020.
  3. The Council examined the recordings made by the installed equipment. The officer noted the noise recorded did not reach the thresholds to amount to a statutory nuisance. The officer noted they considered the time of day, duration, and sound levels of the recordings.
  4. The Council also reviewed audio and video recordings provided by Miss X. The officer noted the recordings either showed no noise, very little noise, or noise that was short in duration and during the day. The officer noted their professional view that Miss X’s recordings did not show noise that amounted to a statutory nuisance.
  5. The Council also visited Miss X’s area to try and witness the alleged noise nuisance. The Council visited three times in May, twice in June, and twice in July 2020. The Council visited at different times, ranging between 10am and 7pm. The Council’s records noted:
    • On five visits, no noise from building works were heard or observed
    • On two visits, there was some noise from building tools, but it was for a short period and the officer did not consider the noise to be unreasonable.
  6. The Council responded to Miss X’s noise complaints in June and July 2020. The Council explained it had considered the recordings she provided, the recordings from the noise monitoring equipment, and completed unannounced visits to Miss X’s area.
  7. The Council confirmed it did not consider the noise reported to amount to a statutory nuisance as the noise was within acceptable levels for DIY and the noise occurred during daytime hours. The Council said it would take no further action. The Council also told Miss X she could take legal action to deal with the noise nuisance.
  8. The Council also addressed Miss X’s complaints about anti-social behaviour. Miss X had complained about her neighbours gesturing at her. The Council told Miss X it could not help and signposted her to the Police.
  9. Miss X reported further noise nuisance between June and August 2021. The Council kept a log of the reports submitted by Miss X and noted the actions it took to follow up.
  10. The Council visited Miss X’s area four times in June 2021 and four times in August 2021, between 9am and 7pm. During two visits, the Council noted there were building works happening. The Council spoke with the contractors and advised that work should only start after 8am.
  11. In August 2021, the Council told Miss X it did not have enough evidence to decide the noise nuisance was a statutory nuisance. The Council also noted Miss X had confirmed most of the noise took place between 8am and 4pm. The Council noted this period was not considered anti-social hours.
  12. In October 2021, the Council provided a further complaint response which again detailed it did not consider the noise alleged between June and August 2021 reached the threshold to amount to a statutory nuisance. The Council also outlined to Miss X how it considered complaints about statutory nuisance, including that the particular sensitivities of those suffering cannot be taken account of. The Council explained the test if for whether a typical person would be expected to suffer some health effect from the nuisance.

Analysis

  1. Under the Environmental Protection Act 1990, the Council must take all reasonable steps to investigate complaints about statutory nuisances.
  2. There is clear evidence Miss X reported alleged noise nuisance in 2020 and 2021.
  3. The Council has evidenced the steps it took to investigate the reports in 2020 and 2021. This included installing noise monitoring equipment, reviewing the recordings submitted by Miss X, consideration of each report as submitted, and visiting the area to try and witness the noise. After consideration of the available evidence, the Council decided the reported noise did not amount to a statutory nuisance.
  4. We are satisfied the evidence shows the Council has taken all reasonable steps to investigate Miss X’s reports of noise nuisance. Therefore, the Council has properly considered Miss X’s reports and gathered all the relevant evidence it needed to make a decision. As the Council has made its decision properly, it is entitled to make a professional judgment that the noise did not amount to a statutory nuisance. We cannot criticise the Council’s decision just because Miss X disagrees with the decision.
  5. There is no evidence the Council used Miss X’s health conditions against her. The Council has outlined the test for when it is deciding whether an alleged noise amounts to a statutory nuisance. The Council was correct in outlining the test is whether a typical person would be expected to suffer some health effect from the nuisance. Therefore, it was appropriate for the Council not to consider Miss X’s particular health conditions or sensitives when considering whether the reported noise amounted to a statutory nuisance.
  6. Finally, there is no fault with how the Council dealt with Miss X’s reports of anti-social behaviour. The incidents Miss X reported appear to be isolated incidents, rather than a pattern of behaviour. It was appropriate for the Council signpost Miss X to the Police who would be able to deal with the reported isolated incidents

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Final decision

  1. We find no fault with the Council’s actions as it has taken all reasonable steps to investigate Miss X’s complaint about noise nuisance. We also find no fault with how the Council dealt with Miss X’s reports of anti-social behaviour. We have completed our investigation.

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Investigator's decision on behalf of the Ombudsman

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