Summary: Mrs X complains the Council has not properly investigated complaints of noise nuisance and breaches of planning control properly. The Council is at fault because it has not fully considered Mrs X’s original noise nuisance complaint. The Council has agreed to apologise, investigate Mrs X’s noise nuisance complaint and pay her £50 for time and trouble.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not properly investigated complaints of noise nuisance, floodlighting and breaches of planning control involving a gate, hedge and decking height properly.
2. Mrs X says she is has suffered delay and the issues she has complained about have not been addressed.

Back to top

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. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I spoke to Mrs X about her complaint and considered documents she provided. I considered the Council’s complaint response and supporting documents it provided.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law, guidance and policies

Statutory Nuisance

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include noise and artificial light from premises.
10. 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.
11. 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.
12. 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.
13. 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

Abatement Notices

14. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
15. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
16. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Section 82 of the Environmental Protection Act 1990

17. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
18. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

Enforcement

19. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
20. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
21. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

What happened?

22. Mrs X reported noise problems from her neighbour in January 2021.
23. Mrs X provided an incident log to the Council in March concerning the problems.
24. Mrs X chased her noise concerns with the Council as she had not had a reply by May. The Council visited Mrs X’s neighbours in May.
25. Mrs X complained that the Council had not investigated her noise issues properly and had delayed dealing with them.
26. A Council officer visited Mrs X’s home in July.
27. Shortly afterwards, Mrs X also raised planning issues with the Council, in addition to her noise nuisance complaint, regarding a gate, the height of tree and a raised decking area.
28. In September Mrs X chased the Council for a response to her July complaint. The Council told her it had considered the matter concluded after the July home visit. Mrs X disagreed with this and the Council agreed to investigate. Mrs X asked for issues raised at the July home visit to be added to her complaint.
29. The Council responded to Mrs X individually regarding the tree height issue. Mrs X was unhappy with the response and asked for it to be to be added to her existing complaint.
30. The Council amended its response deadline to enable further areas of the complaint to be looked into.
31. The Council responded to Mrs X’s complaint in October 2021. It reiterated that the officer who visited in July had considered the noise issues had been addressed and upheld that planning issues had not been passed on.
32. Mrs X complained again that the response did not deal with all the issues in her complaint.
33. The Council considered the planning issues that Mrs X had raised. It provided a response to Mrs X regarding these in November 2021. Mrs X remained unhappy with the Council’s response and complained to the Ombudsman.

Analysis

Outstanding matters raised by Mrs X in September 2021

34. The outstanding matters which Mrs X made the Council aware of in September 2021 included a gate, the height of a hedge, a decking area, floodlights, driveway work, her noise nuisance complaint, and the actions of the Council officer who visited her home.
35. The Council responded to the issues Mrs X raised concerning a gate, the decking area and driveway, through a planning enforcement investigation and driveway issue by clarifying party wall disputes are not the responsibility of the Council.
36. The Council responded to the issues Mrs X raised concerning the height of a hedge through by providing information about the process for applying to the Council to take enforcement action about this.
37. The Council responded to the issues Mrs X raised concerning the actions of the Council officer who visited her home, through its main complaint response.

Noise Nuisance Investigation

38. The Council did not begin to look into the issues Mrs X raised in January until May. Mrs X had to chase the Council to obtain a response. This is fault by the Council.
39. After visiting Mrs X in July, the Council assumed that Mrs X’s noise nuisance complaint was finalised. The Council did not confirm this with Mrs X. Mrs X later made clear to the Council in September that her complaint had not been resolved.
40. Following this the Council logged another complaint for investigation. An email to Mrs X from the Council says, “In response to your email .... I take it that the matter remains unresolved. As such, I will arrange for an investigation to be logged.”
41. The Council should have ensured that Mrs X’s original noise nuisance complaint had been properly addressed once she confirmed it had not been resolved.
42. There is no evidence Mrs X was advised by the Council about her ability to take private action under section 82 of the EPA1990 as outlined in paragraph 18 above.
43. The Council’s further complaint response did not cover the substantive issues contained in Mrs X’s noise nuisance complaint. This is fault by the Council. Mrs X remains uncertain as to what the outcome may be.

Hedge height

44. The Council provided information to Mrs X about how to request enforcement action regarding this matter in September 2021. The information and process is comprehensive and accurate and was provided without delay.
45. Mrs X says the officer who visited her earlier gave her conflicting information and the Council should take action regarding the height of the hedge without charging her. It is not possible for me to determine what was said during the site visit.
46. Mrs X has not made an application to the Council or paid the necessary fee for this as explained in the information provided to her in paragraph 28 above. This is not fault by the Council.

Planning Enforcement Investigation

47. The Council has accepted in its complaint responses that it delayed passing planning issues on to be considered. This is fault by the Council. The Council has already apologised to Mrs X for this.
48. The Council did then consider the planning enforcement issues raised by Mrs X. I have seen a copy of the report considering these issues. Although Mrs X does not agree with the outcome, the Council has considered the issues and made a professional decision that no enforcement is necessary. This is a decision it is entitled to make. This is not fault by the Council.
49. I consider the apology to be an appropriate remedy for the delay identified above. The delay in considering the planning enforcement issues did not cause Mrs X any further injustice because no enforcement action was deemed necessary and so the eventual outcome would not have been different.

Officer actions

50. The Council explained how the officer who visited her considered the issues in its October 2021 complaint response. I have already found fault in paragraph 43 above regarding delays to dealing with Mrs X’s noise nuisance complaint. The Council also accepted information about Mrs X’s planning enforcement concerns was not passed to other departments. I have already found fault in paragraph 47 above regarding this delay.

Complaint handling

51. The Council’s complaint response shows it did not investigate Mrs X’s concerns about noise nuisance or floodlighting.

Back to top

Agreed action

52. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X for the delay in investigating her noise nuisance complaint;
• Pay Mrs X £50 for her time and trouble caused by the delay;
• Investigate Mrs X’s noise nuisance complaint about noise and lighting and formally reply to her explaining what, if any, action it proposes to take, and why; and
• Provide guidance to staff to remind complainants about their rights under section 82 of the EPA 1990 where appropriate.

Back to top

Final decision

53. I have found fault by the Council, which caused injustice to Mrs X. I have now completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman