Summary: Mr X complains about noise nuisance from a factory near his home. The Ombudsman did not find fault in the way the Council considered Mr X’s reports of alleged noise nuisance.

The complaint

1. Mr X complains about noise nuisance from a factory near his home. He is not satisfied the Council thoroughly investigated his complaint. He said the Council:
• Was responsible for delays.
• Did not use noise monitoring equipment.
• Relied on officers attending the site at times when noise was not an issue.
2. Mr X wants the Council to carry out a proper investigation and take matters seriously.

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The Ombudsman’s role and powers

3. 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)
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. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant and my conversation with him.
• Documents provided by the Council and its comments in response to my enquiries.
• Legislation and government guidance on statutory noise nuisance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant legislation

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
8. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

9. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or

injure health or be likely to injure health.

10. 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.
11. 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.
12. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
13. A member of the public may bring a claim of statutory nuisance in the Magistrates’ courts.

How the Council investigates complaints of noise nuisance

14. The Council set out in a letter to Mr X dated October 2020 how it investigates complaints of noise nuisance. The Council’s procedure is as follows:
• The Council tells the subject an investigation into the alleged nuisance will take place.
• The Council asks the complainant to record incidents of disturbance on a log sheet, over a period of 21 days. The investigation will only continue once the complainant returns the log sheets to the Council.
• The Council will examine the log sheets and provided there is enough evidence of statutory nuisance, will undertake a full investigation. This will involve noise monitoring equipment and/or at least three visits by an officer to witness the noise.
• If an officer is satisfied statutory nuisance exists, formal action can be taken. This may result in the matter being brought before the magistrates court.

What happened

15. I have summarised below the key events; this is not intended to be a detailed account.
16. Mr X complained to the Council about noise nuisance from the factory near his home in late August 2020. Mr X did not receive a response so chased this up in early October 2020.
17. The Council contacted Mr X in mid-October 2020 and discussed the complaint. The Council also contacted the factory to tell them of the complaint.
18. The Council wrote to Mr X in late October 2020 and set out its procedure for investigating noise nuisance complaints. It enclosed diary logs and asked Mr X to complete these over a 21-day period and return them before the end of November 2020. Mr X submitted the diary logs as requested.
19. The case officer, who I will refer to as Officer A, telephoned Mr X in mid-December 2020 and told him they would visit the site to witness the noise or install recording equipment after Christmas.
20. The Council used Mr X’s log sheets to find out when it was most likely to witness noise and planned its visits around these times. The Council visited the site five times during February and March 2021.
21. Officer A telephoned Mr X in mid-March 2021 to compare diary notes of the noise witnessed by officers and Mr X. The Council told Mr X that it had not witnessed noise which it considered statutory nuisance and said it will not take formal action. Mr X was not satisfied. The Council Officer said he would speak to his manager.
22. Officer A discussed the matter with his manager and emailed Mr X as promised in late March 2021. The Council reiterated its position and confirmed it did hear noise, but this was not statutory nuisance. The Council closed the case.
23. Mr X complained to the Council.
24. The Council responded to Mr X’s complaint in late April 2021. It stated the Council had listened to Mr X’s complaint, provided diary log sheets and visited the factory. It also said it used the information provided by Mr X to plan and carry out five visits to the area, each lasting at least an hour in duration. Mr X had been told the outcome. The Council stated it had conducted a reasonable investigation and decided there was no evidence of statutory nuisance.
25. Mr X asked the Council to review his complaint. The Council reviewed the case and wrote to Mr X in mid-May 2021. The Council upheld its decision. It explained that an assessment of statutory nuisance is subjective and can only be made by an experienced officer based on evidence. It also recognised that witnessing intermittent noise is difficult and therefore offered two further visits to the site. Mr X refused this offer.
26. Mr X complained to the Ombudsman in September 2021.
27. In November 2021, Mr X contacted the Council again and said noise was still an issue. The Council offered to re-open the investigation. Mr X replied saying the chances of the Council witnessing anything were slim and the matter did not progress.

Analysis

The investigation process

28. The Council has a clear four stage process for investigating complaints of noise nuisance, as I explained in paragraph 15 above.
29. The Council has followed its own procedure when handling Mr X’s complaint of noise nuisance. It communicated with the factory and considered the logs provided by Mr X. It visited the site on five separate occasions, two more than required by its own procedure. The Council confirmed to Mr X it heard noise, but it was satisfied the level of noise witnessed did not amount to statutory nuisance.
30. In its stage two complaint response, the Council offered two further visits to Mr X, going above and beyond its own procedure. Mr X refused.
31. The Council also offered to reopen the investigation in November 2021 when Mr X said noise was still an issue. Mr X did not accept this offer.
32. The Council exceeded the requirements of its investigation process. The evidence it gathered did not support statutory nuisance action. I find no fault in the way the Council has followed its procedure for investigating this matter.
33. Mr X highlighted three elements of his complaint to the Ombudsman as set out in the complaint summary, I shall address each in turn.

Delay

34. Mr X complained the Council delayed in dealing with this matter. It gave three reasons for the delay. First, the COVID-19 pandemic meant resources were reduced and stretched. Second, time was allowed for the factory to install a new silencer to see if this reduced the noise. Finally, the investigation straddled the Christmas period when factories often close.
35. The Council says all these factors contributed to the delay. I note the delay was not ideal and has caused Mr X frustration and inconvenience but given the circumstances I do not consider this to be a significant fault.

Noise monitoring equipment

36. Mr X complains the Council did not install noise monitoring equipment. The Councils procedure states it will either install noise monitoring equipment or an officer will attend a minimum of three times. In this case, the Council visited the site five times. In response to my enquiries, the Council explained it can use noise monitoring equipment as an alternative to an officer visiting the site. However, a suitably qualified officer would need to listen to the recordings. It is likely the officer would also need to visit the site to understand context. The Council said the visit of an officer is better in determining statutory nuisance than the use of recording equipment. I find no fault in the Council relying on officers attending site rather than installing noise monitoring equipment.

Officers attending site when noise was not an issue

37. Mr X also complains the Council relied on officers attending the site when noise was not an issue. In response to my enquiries, the Council explained it analysed the diary logs provided by Mr X to decide the times of day to carry out a site visit. It also explained noise early in the morning or late at night is more likely to be considered statutory nuisance than noise during the day. The Council recognised in its stage two response that witnessing intermittent noise is difficult and offered to visit on another two occasions when the noise was causing Mr X a problem. I find no fault in how the Council determined when to visit the site.

Conclusion

38. Mr X considers officers were wrong to decide 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 decide whether there was a nuisance. 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.
39. If Mr X considers the noise is still an issue, he can take the Council up on its offer of further site visits or ask for a new investigation. He also has the right to take private legal action by bringing a claim in the Magistrates’ court.

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Final decision

40. I have completed my investigation. The Ombudsman did not find fault in the way the Council considered Mr X’s reports of alleged noise nuisance.

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Investigator's decision on behalf of the Ombudsman