Epping Forest District Council (21 007 545)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 25 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to take reasonable steps to investigate his complaint about statutory noise nuisance. Mr X says the noise nuisance caused distress and damage to mental health. The Ombudsman does not find fault with the Council.

The complaint

  1. Mr X complained the Council failed to take reasonable steps to investigate his complaint about statutory noise nuisance. Mr X says the noise nuisance caused distress and damage to mental health.
  2. Mr X also complained the Council misrepresented legal advice it obtained when handling his complaint.

Back to top

What I have investigated

  1. I have investigated Mr X’s complaints about the Council’s noise nuisance investigation.
  2. I have not investigated Mr X’s complaint about the Council’s investigation into the certificate of lawful use for the site. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.

Back to top

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)

Back to top

How I considered this complaint

  1. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
  2. Mr X provided comments on my draft decision which I considered before making my final decision.

Back to top

What I found

Statutory noise nuisance

  1. The Environmental Protection Act 1990 (EPA) places a duty on councils to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other property
    • Injure health or be likely to injure health
  2. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
  3. The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must act to stop it. The Council must issue an abatement notice if it is satisfied that a statutory nuisance exists.
  4. If a person breaks an abatement notice they will be guilty of an offence. A person committing an offence is liable to a fine on conviction by a Court.

Council noise nuisance policy and procedure

  1. When the Council receives a complaint about noise nuisance, the Council will add the complaint to its database and allocate an investigating officer.
  2. The investigating officer will decide the best course of action to take in the first instance. The Council can:
    • Take no action if it decides not to pursue a complaint further.
    • Take informal action, such as mediation or discussions with the alleged perpetrator.
    • Take formal action, such as issuing an abatement notice to stop the noise.
  3. If the Council decides to investigate a complaint but finds insufficient evidence to act formally it will take no further action and close the case. The Investigating officer will write to the person confirming the reasons for the outcome.

What happened

Events before to Mr X’s complaint

  1. In 1994, the Council granted a certificate of lawful use for the land next to Mr X’s future property as a haulage and transport yard. I will refer to this land as Site A.
  2. On 21 December 2017, a developer applied for planning permission to build nine properties on the land next to Site A. I will refer to this land as Site B. Site B was previously an industrial site.
  3. On 16 May 2018, the Council planning officer completed their report on the planning application for Site B. The Council planning officer recommended approval of the planning permission and confirmed the development was located directly next to an industrial site used as a haulage and transport yard. The Council planning officer noted that this would have “some impact on the living conditions of future occupiers” but would not be excessively harmful. The Council granted planning permission for the development of Site B.
  4. The owner of Site A applied to the Council for a certificate of lawful development for the existing use of Site A. The certificate of lawful development was for use of Site A as a depot for parking and ancillary maintenance of commercial vehicles on 4 November 2019. The owner of Site A said they had completed these works on Site A for more than 10 years.
  5. The Council considered Site A’s application for a certificate of lawful use and granted this on 15 July 2020 backdated to 23 October 2019. The Council decided to grant this application because:
    • Six people gave sworn statutory declarations confirming the land had been used for this purpose more than 10 years.
    • Neither the parish council or the owner of the current residential property bordering Site A gave any contradictory comments.
    • Aerial photographs of the site from 2004, 2007, 2010 and 2018 all showed large amounts of commercial vehicles on the site.
  6. Site B finished construction of some houses on Site B by the end of summer 2020. Mr X completed the purchase of his property on 27 November 2020 as part of the first batch of purchases in November 2020 and December 2020. The final three houses completed in January 2021.
  7. A resident of Site B began the process of making noise nuisance complaints to the Council about Site A in January 2021. The Council and the resident agreed to expand the complaint to cover many of the residents from Site B. The Council engaged with Site A and the resident about the noise nuisance from Site A.
  8. In June and July 2021, six of the residents from Site B, including Mr X, gave noise nuisance diary sheets to the Council about the noise from Site A.
  9. The Council grouped the noise nuisance diary sheets together under one complaint and responded to the residents on 15 July 2021. The Council said it can only tackle noise nuisance that was either unnecessary or preventable and could not address noise caused by the established use of the site. The Council said it would be looking to install noise recording equipment shortly to analyse the noise from the site.

Events since Mr X’s complaint

  1. Mr X, and other residents of Site B, complained to the Council on 15 July 2021 about its decision that it could not investigate the operational noise created by the businesses on Site A. The Council accepted Mr X’s complaint.
  2. The Council provided Mr X with an update on 23 July 2021. The Council said its investigation into the noise nuisance was continuing and it was awaiting a breakdown of activity from Site A to compare to the noise nuisance diary sheets. The Council also told Mr X it was seeking further legal counsel about the noise nuisance.
  3. The Council sought formal legal counsel on this matter and installed noise monitoring equipment on to Site B on 28 July 2021.
  4. The Council issued a Stage 1 complaint response to the residents of Site B on 30 July 2021. The Council said it had obtained legal advice already which told it to focus on avoidable noise rather than pre-existing site noise from normal operations of the site. The Council confirmed it had arranged to install noise monitoring equipment into a property on the residential development as part of its investigation.
  5. The Council removed the noise monitoring equipment on 4 August 2021 and installed further noise monitoring equipment in a different property on Site B on 10 August 2021.
  6. Mr X sought consideration of his complaint at Stage 2 of the Council’s complaints procedure on 11 August 2021. Mr X disputed the Council’s consideration of the law and advised the Council failed to address concerns about the “prejudicial to health” grounds of statutory nuisance. Mr X also disputed the operations at Site A were in line with the certificate of lawful use as this did not cover freight activity.
  7. The Council received its legal counsel which told the Council that it cannot ignore a noise nuisance because a person “has come to it” or that Site A pre-existed Site B. But, the legal counsel did outline the Council must consider the “character of the area” when deciding if a statutory noise nuisance existed. The legal counsel presented a guide from the case Coventry v Lawrence in which the following was set out:

“…, where a claimant builds on, or changes the use of, her land. I would suggest that it may well be wrong to hold that a defendant’s pre-existing activity gives rise to a nuisance provided that:

i) it can only be said to be a nuisance because it affects the senses of those on the claimant’s land,

ii) it was not a nuisance before the building or change of use of the claimant’s land,

iii) it is and has been, a reasonable and otherwise lawful use of the defendant’s land,

iv) it is carried out in a reasonable way, and

v) it causes no greater nuisance than when the claimant first carried out the building or changed the use.”

  1. The legal counsel advised the first three and fifth factors were satisfied in this case, but the Council needed to focus on the fourth.
  2. The Council removed the noise monitoring equipment from the second property before issuing its Stage 2 complaint response on 19 August 2021. The Council said the legal counsel it obtained told it to concentrate on the preventable noise which is what it was doing. The Council directed Mr X to the Local Government and Social Care Ombudsman (the Ombudsman). The Council said it would address Mr X’s concerns about the certificate of lawful use as a separate matter through its planning department.
  3. The Council installed two CCTV cameras on Site A to enable it to check the activities on the site at the start of September 2021.
  4. The Council also completed its review of the noise recordings from the noise recording equipment it installed into the two residential properties. The Council decided that:
    • The engine idling was not a statutory noise nuisance because this is expected from an industrial site such as Site A. The noise recordings show the site to be operating as expected.
    • The noise recordings did not capture any machinery left running when not in use. The recordings showed use of power tools and air compressors which is activity expected from a site like Site A.
    • There were occasions of raised voices or shouting from Site A but the recordings captured do not demonstrate prolonged shouting or raised voices at night. Most voice recordings were at a reasonable level.
    • No music was recorded on either sets of recordings at a volume that could be considered a statutory noise nuisance.
    • No further action was need for statutory noise nuisance but a further investigation needed to be completed for clarification of the activities under the certificate of lawful use of Site A.
  5. The Council wrote to the residents of Site B on 21 September 2021. The Council said it did not consider enforcement action was appropriate based on the evidence captured but it needs to complete further investigations. The Council also confirmed it had installed CCTV cameras to watch the site and asked the residents to provide further logs so it could consider these in line with the CCTV footage.
  6. Mr X disputed the Council’s conclusions from the noise recordings.
  7. On 16 October 2021, the Council installed a third CCTV camera on the site and installed signs warning site tenants to restrict music from all vehicles.
  8. The Council removed all three CCTV cameras on 5 November 2021 and closed its noise nuisance investigation on 13 November 2021. The Council wrote to the residents to advise it believed Site A to be operating reasonably within their certificate of lawful use. The Council said it found no evidence of statutory noise nuisance about the operations of the site. However, it had found evidence of loud music playing from the site and confirmed it would serve a Community Protection Warning on the site about the music.
  9. On 15 November 2021, the Council issued a Community Protection Warning on to the owners of Site A and the owner of the vehicle recorded to be playing loud music.
  10. The Council continued its investigation into the certificate of lawful use. This is ongoing to the date of this decision statement.

Analysis

  1. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define the law.
  2. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decisions about statutory noise nuisance. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.

Site A operational noise

  1. Mr X complained the Council decided to focus its investigations on the preventable noise from the site rather than considering the operational noise. Mr X said this was a misinterpretation of the Council’s legal counsel.
  2. The legal counsel told the Council it could consider operational noise from the site and needed to consider if Site A’s operational was carried out in a “reasonable way”. The legal counsel clarified for the Council what it could consider as “reasonable” would be a consistent use of Site A before and after Site B became residential.
  3. The legal counsel said there is no defence to say a person came to the noise. But, an activity from Site A which was not a nuisance before a change of Site B, could not be considered a nuisance after the change of Site B, if it is carried out in a reasonable way. The legal counsel also said that noise nuisance was contextual to an area and a residential site next to an industrial site should expect more industrial noise than a purely residential area.
  4. While the Council told Mr X it would be focusing its investigation on preventable noise, the Council has also considered operational noise from the site in its investigation.
  5. The Council has investigated the operations at the site and decided the occupants of Site A have completed consistent activities before and after the change to Site B. While the Council notes some changes in the businesses running from the site it considered the operations similar in nature. The Council pointed to the certificate of lawful use it granted which confirmed the existence of commercial vehicles on Site A since at least 2004.
  6. The Council would still have to consider the reasonableness of the operational noise from Site A to follow the legal counsel. As part of the Council’s noise nuisance investigation, which I have addressed in more detail in paragraphs 53 to 62, the Council has considered noise caused by idling engines, shouting, music and machinery.
  7. Additionally, the Council has confirmed with the Ombudsman it has received no complaints from the pre-existing residential property bordering Site A about the industrial noise from Site A. While this does not mean that industrial noise from Site A could not be a noise nuisance it provides contextual information for acceptable noise from the area surrounding Site A.
  8. The Council has considered noise caused by site operations alongside its consideration of preventable noise. The Council has considered the operations at Site A before and after the change to Site B. It has also considered the reasonableness of the operational noise at Site A in the context of the area. The Council has acted in line with its legal counsel. I do not find fault with the Council.

Noise nuisance investigation

  1. When the Council receives a complaint about noise nuisance, it has a duty to investigate the complaint. The Council’s policy says the investigating officer allocated to the case will decide the appropriate course of action.
  2. The investigating officer initially took informal action by entering into discussions with Site A before sending diary sheets to the residents of Site B including Mr X. When Mr X returned the diary sheets to the Council it agreed to install noise monitoring equipment into properties on Site B to investigate the noise further.
  3. The Council took suitable steps to investigate Mr X’s concerns about noise nuisance through review of the diary sheets returned in July 2021 and installation of noise monitoring equipment in August 2021. I do not find fault with how the Council started its investigation.
  4. The Council installed two sets of noise monitoring equipment in August 2021 to capture noise from Site A. The Council reviewed the noises recorded by the noise monitoring equipment in September 2021 and completed an analysis of the noise recordings. The Council’s review of the noise recordings determined that it could find no statutory noise nuisance from Site A. But the Council decided would need to complete a further investigation into the certificate of lawful use for the site.
  5. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])
  6. The Council has presented the Ombudsman with its review of the noise recordings. It is the Council’s role, in line with the Environmental Protection Act 1990 to make a judgement about what constitutes a statutory noise nuisance. The Council officer’s analysis of the noise recordings presented in this case is not something the Ombudsman would consider unreasonable. As such, the Ombudsman cannot find fault with the Council’s decision to find no statutory noise nuisance.
  7. The Council followed its process and wrote to Mr X following its review of the noise recordings to explain its rationale about finding no statutory noise nuisance.
  8. While the Council found no statutory noise nuisance from the noise recordings, the Council decided to complete further investigation. The Council did this by installing CCTV cameras onto Site A and asking the residents of Site B to provide further logs of noise nuisances. The Council’s decision to take on further investigation resulted in it finding a statutory noise nuisance by a site vehicle playing music. The Council did not find any other statutory noise nuisance from this further investigation.
  9. The Council followed its policy, and met its duty under the Environmental Protection Act 1990, by taking formal action against Site A, through issuing a Community Protection Warning when it found a statutory noise nuisance. The Council wrote to the residents of Site B to advise of its decision to issue this warning.
  10. The Council also followed its policy by writing to the residents to advise it was closing down its investigation into other noise nuisance since it could not find sufficient evidence to take formal action. The Council has followed its policy and I do not find fault.

Back to top

Final decision

  1. I have completed my investigation as there was no fault by the Council.

Back to top

Parts of the complaint that I did not investigate

  1. I did not investigate Mr X’s complaint about the Council’s investigation into the certificate of lawful use of the site. This is because the Council has an ongoing investigation into this issue.
  2. The Ombudsman must allow the Council opportunity to address a complaint before it can investigate a matter. Mr X raised the issue or certificate of lawful use of the site in August 2021 and the Council raised a separate investigation to address this matter. This investigation is ongoing.
  3. The Council continued to address the noise nuisance complaint and provided a Stage 2 complaint response about this matter, enabling Mr X to approach the Ombudsman with his complaint.
  4. While there is some cross-over between the noise nuisance and certificate of lawful use, which I have addressed, the Council’s main investigation into the certificate of lawful use is yet unfinished. The Ombudsman cannot look to pre-empt the Council’s findings.
  5. Since I have not addressed this aspect of Mr X’s complaint, he will retain his right to approach the Ombudsman about the certificate of lawful use investigation following the Council’s conclusion of this matter.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings