Summary: There was no fault by the Council in a complaint about its handling of the complainant’s reports of alleged noise nuisance from a neighbouring property.

The complaint

1. I refer to the complainant as Mr X. Mr X complains about the Council’s handling of his reports of alleged noise nuisance from a neighbouring property. Mr X says:
• He was informed by the investigating officer that a water pump was being serviced at the end of February 2020 but this did not happen.
• The investigating officer stated he would write to the managing agent of the property in March 2020 but this did not happen.
• In March 2020, he was informed noise measuring equipment would be fitted in his property if the investigating officer did not hear back from the managing agent but this did not happen.
• Investigating officers concluded the noise he was experiencing was a low humming sound and not a statutory nuisance despite the evidence he provided.
2. Mr X says the Council’s officers treated the investigation with total contempt. He says officers did not give him a call when they arrived to listen to the noise. He says officers accepted the noise nuisance complaint but they did not want to deal with it. He says the noise officers listened to was not the noise that he experienced daily. Mr X says officers were aware of his bad health but did not take this into account.

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The Ombudsman’s role and powers

3. 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)
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

5. I examined the complaint and background information provided by Mr X and the Council. I telephoned Mr X to discuss the complaint. I sent a draft decision statement to Mr X and the Council. I considered the comments received in response to the draft statement.

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What I found

Noise nuisance law and guidance

6. Councils must investigate complaints about noise that could be a statutory nuisance under the Environmental Protection Act 1990. The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
7. For a noise to count as a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises
• Injure health or be likely to injure health
8. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
9. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.

Background

10. Mr X contacted the Council in February 2020 to say that he was disturbed by noise from use of a water pump in a neighbouring property. The Council provided him with diary sheets and also contacted the managing agent of the subject property.
11. The managing agent told the environmental health officer that the water pump was due to be serviced and this may help abate the noise issue. The officer conveyed this information to Mr X.
12. In early March 2020, Mr X wrote to the officer to say the water pump had not been serviced. He provided diary sheets. Mr X says he chased the Council by telephone four times
13. The officer acknowledged receipt of the diary sheets. He told Mr X he would write again to the managing agent and if he did not hear back from the agent in two weeks then he would make arrangements to fit noise monitoring equipment in Mr X’s home.
14. Mr X chased the Council four times by telephone before he contacted the Council again at the end of April 2020. He asked for an update on the investigation. He said he was still disturbed by noise from use of the water pump.
15. In reply, the officer explained the investigation was at the stage where the Council had to fit noise monitoring equipment in Mr X’s home but could not do that due to the Covid19 pandemic. The officer asked Mr X to record the noise on his mobile phone so the officer could share it with the managing agent. Mr X says the officer did not share the recording with the managing agent.
16. In December 2020, officers arranged a visit to the building so they could witness the alleged noise nuisance. Officers noted the sound they heard as ‘a faint humming noise’. They said the noise was not a statutory nuisance but felt it was an annoyance to Mr X. They decided to contact the managing agent to see whether insulation could be installed to abate the noise Mr X experienced.
17. The managing agent initially agreed to install insulation in February 2021. However, the agent then told the Council in March 2021 that the maintenance manager had been verbally abused when on site. So, the agent decided not to cooperate with the Council any further. The agent pointed out the offer had been voluntary and not based on a finding of a statutory nuisance.
18. There were new Covid19 restrictions that meant the Council could not directly install noise monitoring equipment in Mr X’s home. So officers reviewed the noise recordings Mr X had provided through its noise app. The officers decided the noise they heard was not a statutory nuisance as the activity causing the noise was not unreasonable and the noise level was not excessive. Officers decided to close the enforcement investigation.
19. Mr X formally complained to the Council. In its final stage response in May 2021, the Council said it would contact the managing agent again and ask for insulation to be installed. The agent installed the insulation in June 2021. Mr X says this abated the noise. However, he complains about the upset and distress he had to suffer because the Council did not follow legislation properly.

Finding

Mr X was informed by the investigating officer that a water pump was being serviced at the end of February 2020 but this did not happen

20. The water pump was not serviced. This was not fault by the Council. It accepted the agent’s statement in good faith. The Council was not statutorily required to insist on the water pump being serviced within the timeframe suggested by the agent.

The investigating officer stated he would write to the managing agent of the property in March 2020 but this did not happen

21. The Council says the officer wrote to the managing agent in March 2020 after Mr X told him the water pump had not been serviced. The Council did not provide a copy of the correspondence to Mr X and so he doubts a letter was sent.
22. For the purposes of this investigation, I do not consider it necessary to see the correspondence myself. The Council told Mr X the letter was stored in the investigation file and I have no reason to doubt its veracity. Mr X can of course make a freedom of information request to see the correspondence and the Council has to determine whether he is legally entitled to the information.

In March 2020, he was informed noise measuring equipment would be fitted in his property if the investigating officer did not hear back from the managing agent but this did not happen

23. The environmental health officer did say he would arrange installation of noise monitoring equipment if he did not hear back from the agent in two weeks. But within this timeframe, Central Government imposed Covid19 pandemic restrictions.
24. It would have been better had the officer written to Mr X promptly to explain why the equipment could not be installed in his home. But the officer did so in April 2020. There was a delay before the officer explained the equipment could not be installed but this delay was minor and does not amount to fault.

Investigating officers concluded the noise Mr X was experiencing was a low humming sound and not a statutory nuisance despite the evidence he provided

25. The environmental health officer initially gathered evidence on the noise from Mr X in the form of noise diaries. Officers then visited the site to assess the noise. Officers also gathered further evidence through the noise app.
26. On examination of the Council’s actions in this case, I am satisfied the Council took reasonable steps to investigate Mr X’s allegation of a noise nuisance from the neighbouring property.
27. This investigation cannot determine whether officers treated Mr X’s case with contempt.
28. I note 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.
29. I note Mr X’s bad health. But the Council was not statutorily required to find there was a nuisance because Mr X would be more disturbed by the noise given his bad health.

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Final decision

30. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman