Summary: The Council was at fault for how it investigated noise coming from a nearby business and decided it was not a statutory nuisance. However, this did not cause the complainant, Ms X, a significant personal injustice, as the Council subsequently acted without fault and came to the same conclusion. The Council has offered to make improvements to its practice, which we welcome. It has agreed to send the Ombudsman evidence it has completed those actions.

The complaint

1. Ms X complained the Council failed to take adequate action to investigate and address noise nuisance coming from a nearby business. She said the noise significantly affected her and her neighbours’ day to day lives.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with an organisation’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

3. I considered the information provided by Ms X and the Council.
4. I considered the relevant law and guidance as set out below.
5. I considered comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Noise nuisance

6. Councils must look into complaints about noise that could be a statutory nuisance (covered by 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 premise; or
• injure health or be likely to injure health.
8. Generally, the statutory nuisance will need to be witnessed by the Environmental Health Officer and they will come to an independent judgement.
9. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has actually occurred.
10. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
11. Councils can take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation. Councils can also take such steps while investigating a potential statutory noise nuisance.

Cambridge City Council’s webpage on noise nuisance

12. The information on the Council’s website says, ‘We have a duty to deal with statutory nuisances, which are defined by the Environmental Protection Act 1990 as “prejudicial to health or a nuisance” – in other words, noise that would be considered a nuisance to the average person, rather than noise of a specific volume. We are unable to take into consideration an individual’s circumstances or sensitivities.’
13. ‘If following further investigation we are satisfied that a nuisance is being caused, we will usually serve a statutory noise abatement notice to prevent a recurrence of the problem. The notice will require the noise to be reduced to a level which is not a statutory nuisance, within a reasonable time dependent on the circumstances of the case.’
14. ‘Businesses must be able to show that they are using the best practicable means of preventing a noise nuisance. If a potential noise problem is identified, it may be necessary for officers to monitor the situation and determine if work practices or the machinery used are adequate.’

What happened

15. Ms X started to hear a loud, constant noise in and around her property in November 2020.
16. The Council investigated the noise in response to reports made by Ms X and other residents who said they believed the noise was coming from a nearby business.
17. In November and December 2020, the Council attended properties affected by the noise on seven occasions to investigate the level and type of noise reported. This included several visits to Ms X’s home and others in the nearby area.
18. The Council’s first few visits identified a noise which it said could potentially be a statutory nuisance. The Environmental Health Officer noted that the noise was ‘constant’ and ‘intrusive’.
19. The Council later found that the noise was from one of the local business’s machines, Machine A, but by that time, the volume had reduced. The business confirmed it was no longer using Machine A in the way that had caused the noise.
20. Some other noise remained, which the Council assessed on several visits that month. It found the remaining noise was coming from a different machine, which I refer to as Machine B.
21. While Machine B produced a noise, the Council officer who carried out the site visit did not consider it constituted a statutory noise nuisance. Nevertheless, the Council asked the business to find ways to mitigate the remaining noise from Machine B as residents said it was affecting them. It kept the investigation into the noise open in the meantime.
22. The business then decided to plan to move Machine B to another area of its site. It submitted a planning application to the Council for permission to move the machine. The business carried out an environmental impact assessment as part of its planning application. This assessment included the impact of noise on the surrounding area. The Council’s environmental health department reviewed the planning application.
23. On 1st February 2021 the Council carried out a further site visit. A few days later, it formally decided the noise was not a statutory noise nuisance.
24. It told the business it could continue using Machine B but informed Ms X it would continue to monitor the noise if further complaints were received.
25. At this time, an independent acoustic report about the noise from Machine B had been sought but it had not been completed yet.
26. Ms X complained to the Council in March 2021. She said:
• before making the decision that Machine B could continue to operate, the Council’s officer attended the site visit alone on 1st February 2021, when he should have attended in a pair;
• the Council’s officer made the decision before the outcome of the acoustic report was known;
• the Council did not change its decision making in response to a noise assessment which residents paid for privately and which said the noise would amount to statutory nuisance; and
• the Council’s officer investigating the noise lacked integrity and was not impartial.
27. In its complaint response, the Council said it did not agree its officer lacked integrity. It also did not agree that the residents’ privately commissioned noise assessment meant it should change its finding regarding the noise nuisance.
28. The Council said it appreciated the residents’ noise consultant had reached a different conclusion, but the Council’s decision was made by qualified officers after several visits and assessments. It said the residents’ own consultant’s report did not mean that the Council’s conclusion was wrong or unreliable.
29. However it upheld Ms X’s complaint about the officer attending the 1st February 2021 visit on his own. It said the officer should have judged it would have been better for two officers to attend before making the decision that the noise was not a statutory nuisance and whether the machine could continue to operate.
30. The Council also agreed the officer should have waited for the outcome of the acoustic report before making any formal decision about the continued operation of Machine B.
31. In response to the faults identified above, the Council said it would:
• review its noise assessment and decision making processes;
• ensure consistency in future around officer attendance on visits and signing off on decision-making;
• organise relevant training for environmental health officers to ensure they follow the correct processes;
• review and update the Councils’ website to make it clear what customers can expect from this part of the service; and
• request that the business release the ‘raw data’ on noise from its own noise assessment and provide it to the Council.
32. It also noted that all visits to investigate the noise which took place subsequent to the one on 1st February 2021 were done in pairs.
33. The Council told Ms X it requested the ‘raw data’ from the business’s noise assessment but the business did not provide it and was under no legal obligation to do so.
34. In mid-February 2022, following further noise assessments, the Council decided again that the noise from the nearby business did not amount to a statutory noise nuisance. It sent Ms X an email to explain its decision and advised that her noise complaint was now closed.
35. In June 2022, the Council approved the business’s planning application to relocate Machine B to another area of its site, subject to conditions.
36. Among these conditions were noise mitigation measures. These included noise insulation around the machine, restrictions on permitted sound levels and positioning of the machine in such a way that the noise is directed away from nearby residential dwellings.

My findings

37. The Council carried out an appropriately thorough investigation into the reports it received of excessive noise from the business site. Its actions included carrying out several visits to different nearby locations to investigate the noise. It considered several noise assessments, officer’s professional judgement and measured the noise level.
38. However, the Council has accepted some fault in how it investigated Ms X’s concerns. The Council agreed it would have been preferable for two officers to be present during one of the site visits. It also accepted the officer should have waited for the outcome of the acoustic report before deciding the noise was not a statutory nuisance. I agree the Council was at fault in these areas.
39. The Council suggested appropriate improvements to its practice to prevent the fault occurring again, as set out in paragraph 29 of this decision statement. I have made a recommendation in paragraph 38 that the Council send the Ombudsman evidence it has completed these changes.
40. The fault did not cause Ms X a significant personal injustice. The Council’s decision in mid-February 2022 took account of the acoustic report and other noise assessments. Many subsequent visits were conducted in pairs, but the Council came to the same conclusion.
41. While councils are investigating potential statutory noise nuisances and when they have decided the noise does not meet the threshold, they can decide to take informal action. The Council did this by asking the business to take steps to mitigate the noise. The Council can also manage noise through the planning process, which it did. It looked at the impact of the noise as part of its consideration and chose to place conditions on the business to minimise any noise. The Council was not at fault.

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Agreed action

42. Within one month of the date of the final decision, the Council has agreed to provide evidence that it has carried out the service improvements it set out in its complaint response, which are:
• a review of its noise assessment and decision making processes;
• measures to ensure consistency around officer attendance on visits and signing off on decision-making;
• relevant training to be arranged for environmental health officers to ensure processes are followed; and
• review and update the Councils’ website to make it clear what customers can expect from this part of the service.

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Final decision

43. I have ended my investigation. I have found fault but it did not lead to significant personal injustice. The Council has agreed to confirm it has completed the service improvements it has already identified.

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Investigator's decision on behalf of the Ombudsman