Summary: We will not investigate this complaint about how the Council responded to the complainant’s concerns about noise nuisance. There is no evidence of fault by the Council and the complainant can seek a remedy in court.

The complaint

1. The complainant, who I refer to here as Mr X, says the Council has not properly explained why it will not take enforcement action against a car wash business near his home. He says the Council has not properly considered the law when considering his concerns.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could seek a remedy in court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information provided by Mr X. I also considered our Assessment Code.

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My assessment

6. Under the Environmental Protection Act 1990, councils have a duty to investigate complaints that a statutory nuisance exists. If a council decides there is a statutory nuisance, it must take action to abate the nuisance. Whether a statutory nuisance exists is a subjective decision taken by qualified environmental health officers.
7. The Council has considered Mr X’s complaint and environmental health officers visited the site on several occasions. However, the officers decided there was not a statutory nuisance so there was no formal action it could take. The Council has explained this to Mr X.
8. Further, Mr X B has a right to seek his own remedy in court regardless of the Council’s decision there is no statutory nuisance. Under section 82 of the Environmental Protection Act 1990, it is open to members of the public to bring their own case to a magistrates’ court and ask it to serve an abatement notice. In such cases, it is for the court, and not the council, to decide if a statutory nuisance exists and require any action to abate the nuisance.

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Final decision

9. We will not investigate Mr X’s complaint because there is no evidence of fault by the Council. He can also seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman