Summary: Mr X complains the Council was at fault in the way it dealt with his complaints of noise nuisance from a nearby business at night- time preventing him sleeping and causing distress. We found fault because the Council failed to keep Mr X updated of its actions for several months. The Council apologised to Mr X which is suitable action for it to take. We also found fault as the Council did not act as it planned to do for some time. But this fault did not cause Mr X an injustice as he had moved away from the area. So, we have completed our investigation.

The complaint

1. I have called the complainant Mr X. He complains about the way the Council investigated his complaints of noise nuisance at night from a nearby business on an industrial site. Mr X says the Council has:
• Failed to keep him informed about its actions in response to noise problems caused by the operation of the business.
• Failed to take any action against the business for noise nuisance for two years.
2. Mr X says the noise preventing him sleeping and caused him distress. So, he eventually had to move away from the area

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

4. 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

5. I have read the documents submitted by Mr X and spoken to him about the complaint. I considered information from the Council and the supporting documents it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

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 EHO(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 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. 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 noise abatement notice ( NAN) for a short period, to attempt to address the problem informally. The person served with an abatement notice has the right to make an appeal to the magistrates’ court within 21 days of the date of service of the notice.
13. 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. 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 of the EPA.

The Council’s noise policy

14. The Council’s policy on noise nuisance says it will ensure that enforcement action is fair, consistent, and proportionate and is carried out in accordance with the Public Protection Division’s enforcement policy. The Council’s Environmental Regulation team investigates complaints about noise and vibration including domestic, industrial, and commercial.
15. When the Council receives a noise complaint EHO’s will contact the complainant and the source of the noise. The Council will carry out possible investigation methods including officer visits, sound recording equipment or use of the out of hours service.
16. Paragraph 5.2.1 of the policy says where a nuisance has been established the Council has seven days before which it must serve a NAN notice. Depending on the response received an officer may either choose to give a person seven days to abate the notice or satisfy the officer that plans are in place to abate the nuisance. Or alternatively may immediately serve a NAN. The decisions are made on a case-by-case basis by a senior officer.

What happened

17. This section sets out the key events in this case and is not intended to be a detailed chronology.

Events in 2020

18. The business has been at the industrial site for many years. Mr X moved into a property on a housing development near to the site in 2019. Mr X shared the house with his partner Ms Y. In May 2020, Mr X complained to the Council’s environmental health service about noise from the business at night including staff shouting, loud machinery and vehicles
19. An EHO spoke to Mr X about his concerns and contacted the business. The officer reported it difficult to make meaningful contact with the business because of the Covid-19 pandemic. But managed to get the business’s commitment to produce a plan to identify and implement measures to mitigate noise sources. The officer started to gather evidence including installing noise monitoring equipment at Mr X’s home to see if there was a noise nuisance.
20. In October 2020 the Council confirmed a statutory noise nuisance from site. The officer recommended the business employed a noise consultant. The business agreed to this and to get quotes and impose extra measures to deal with specific noise sources on-site. This included replacing reversing bleepers on forklift trucks with noise reducing features, and silencers to some machinery. The Council confirms the business quickly carried out most measures.
21. The business went through a tender process to choose and appoint an acoustic consultant to carry out a noise survey. The survey was delayed by four months because of poor weather and the consultant catching Covid-19. The consultant competed the monitoring work in March 2021 and produced a report in April 2021.
22. The report concluded the business needed a large acoustic barrier on site to reduce noise levels to acceptable ones at nearby residential properties. The proposed size of the barrier meant the business needed to get extra consultant reports such as a structural engineer, before progressing works. The officer visited the business to discuss the report and updated Mr X.

Mr X’s stage 1 complaint June 2021

23. Mr X complained to the Council in June 2021 about noise from the business and its impact on him and Ms Y. Mr X said the business failed to do anything, so he asked the Council to act. The Council responded and explained the actions taken so far with an acoustic barrier needed to reduce noise to acceptable levels. The Council confirmed the business was appointing a contractor to build the barrier. It hoped it to build it soon subject to any delays such as needing planning permission. The EHO would continue to progress the works quickly and keep Mr X updated.
24. The Council acknowledged it had taken time from witnessing the statutory nuisance in October 2020 to actions in June 2021. The Council sympathised with Mr X as the business carried out some works to reduce noise from the site straight away but delays to the major works were outside the Council’s control.

Mr X’s stage 2 complaint June 2021

25. Mr X remained unhappy with the Council’s response and asked to go to stage 2 of the complaint procedure. He complained he was only aware of the Council’s action through its response. Mr X said it had taken four months to install noise monitoring equipment at his house and poor weather delayed monitoring on site. Mr X said he still suffered from noise, so measures taken already were not successful. Mr X considered the Council failed to verify the action taken by the business.
26. The Council responded to Mr X’s concerns in July 2021. It explained its approach to controlling noise nuisance was to use a graduated process to enforcement. It tried to resolve matters informally at first as it found it achieved results more quickly. It said larger companies tended to work effectively with informal action as more formal action ended in court which took longer to resolve.
27. The Council accepted it had not updated Mr X in a timely fashion especially between October 2020 and April 2021. It confirmed it was in discussions with the business and could have updated him more regularly. The Council apologised and although it had not updated him it was confident until June 2021 the business was acting to resolve matters from the information provided.
28. The Council said the Covid-19 pandemic had been an exceptionally busy time for the noise team which contributed to its failure to update him. It found the volume of noise complaints received a challenge to deal with. The Council reminded the noise team to reinforce the importance of update information to people who contact it.
29. The Council acknowledged there appeared to be time lapses before installing noise monitoring equipment. But what was happening during that time was a standard part of its procedures. These were explained to him, but the Council intends to provide a leaflet for people who complain about noise nuisance. This will explain the processes involved to improve communication and awareness.
30. The Council was satisfied the business was taking the issue seriously. This was due to it employing an acoustic consultant and gaining quotes for other work as the costs of doing so were significant. The Council said it could have pushed the business to re-award the contract during the delays in 2020. But felt on balance the reasons given for the delay were reasonable and starting again did not give a significant time advantage. The poor weather did delay matters as the monitoring needed to be an outdoor assessment. But the Council felt the business took enough action to satisfy it was making reasonable progress until early July 2021.
31. The Council said the main and most effective control measure at the site was to install an acoustic noise barrier and the business appeared willing to continue with it. The Council expected the business to progress matters. But it failed to submit a planning application for the barrier. This and other reasons influenced the Council to now change its approach to more formal action to gain compliance. The Council recognised Mr X’s view it should have done so sooner, but it needed to show the court it had adopted a reasonable process first.
32. The Council said it needed to carry out more noise monitoring at Mr X’s house and expected to be able to serve a NAN on the business. The Council said it would inform Mr X. But it could take months due to the work planned for the site and need for the barrier to have planning permission. The Council said if the matter went to court it needed to show it had not imposed too demanding a timescale on the business.

Events from July 2021

33. The Council carried out night-time visits to the area and noise monitoring at Mr X’s property at the end of July 2021. The evidence confirmed a statutory nuisance still existed. When officers collected the equipment from Mr X’s house Ms Y advised they had separated, and Mr X had left the property.
34. Following legal advice, the Council decided to write a strongly worded letter to the business rather than serve an NAN. The letter would summarise the Council’s investigation and the action it expected the business to take if they wished to prevent an NAN.
35. The officer updated Ms Y in October 2021 and explained the proposed action. The Council sent the letter to the business in December 2021. Mr X was at the property with Ms Y, but the Council was unclear whether he had moved back. The Council acknowledges it sent the letter later than planned due to high demand on the Environmental Health service and officers on long-term sick leave.
36. Officers met with representatives of the business on site in December 2021. The Council expressed serious concern about the lack of progress in abating the noise nuisances. It told the business if it did not put a plan in place within reasonable timescales, the Council would serve an NAN.
37. Officers met a new member of staff at the business taking the lead on mitigation measures. The staff member explained the business’s concerns about building an acoustic barrier. This was due to the size and cost (£250,000) with no guarantee it would work. The business did not want to spend the money on a barrier. Rather it planned to invest in removing the noise at source and had already started doing so.
38. The business explained an old machine on-site was a main source of noise. So, it had ordered a replacement which emitted a less noise. The machine was due to be there already but delayed until January 2022 because of worldwide supply issues. The business had already put a new procedure in place to reduce the number of night-time movements the old machine made by 50 percent.
39. Another source of noise came from forklift trucks driving over uneven ground. The business previously told the Council it could not repair the ground. So, it made certain areas of the site out of bounds during night-time hours, and it planned to find a way to level the ground to prevent noise from trucks driving over it.
40. The business showed officers other measure of mitigation and monitoring in place. The Council considered it a productive meeting and agreed to meet with the business regularly for updates on the works. The Council said it would carry out a range of monitoring to confirm the measures abated the nuisance.
41. The business advised it planned to redevelop the site over the next few years, changing the site layout and where any potential noisy activities occurred during night- time hours. This would make a noise barrier unnecessary. The business agreed to employ the noise consultant again to help with monitoring.
42. The Council carried out night-time noise monitoring of the business during December 2021 and found no evidence of a statutory noise nuisance from the site. Officers emailed Ms Y in January 2022 with an update.
43. The Council carried out night-time monitoring again in February 2022 and found no evidence of a statutory noise nuisance. An officer spoke to Ms Y and updated her on monitoring carried out so far. The officer said the noise levels had reduced after the business filled in potholes on the site. Ms Y said it had a positive effect, but she could still hear some noise. It was unclear if Mr X was living at the property again, but Ms Y confirmed to the Council she should be the main contact for updates.
44. Officers met with the business in February 2022 and saw repairs to the site. The new machine was still delayed, and officers advised the business may have to hire one until the new one arrived. The business said it planned to replace the forklift trucks with quieter electric models. It had also taken action to reduce noise levels of other machinery with the acoustic consultant on site to start verification assessments.
45. An officer updated Ms Y in March 2022. In April 2022 the business confirmed the new machine was on site and working. The officer contacted Ms Y again to update her and was asked to speak to Mr X. The officer gave Mr X a full update. The Council recorded Mr X was thankful and agreed the business was making big improvements with noise levels reduced. The officer said the Council would carry out further monitoring including installing noise monitoring equipment at Ms Y’s property. The Council carried out the monitoring on four separate occasions between April and May 2022. It found no evidence of a statutory noise nuisance from the site.

The Council’s comments on the complaint

46. The Council says the nature of the statutory nuisance at the business being investigated was a sensitive one due to the potentially high costs involved with the remedy. And the need to accurately establish what appropriate mitigation was needed before investing.
47. The Council initially accepted agreement under its Policy 5.2.1 as an EHO contacted the business recommending it employ a noise consultant. The business agreed and got quotes for other works to deal with noise sources. This satisfied the Council plans were in place to abate the nuisance. The Council continued to work towards the plan until July 2021 when it considered a lack of progress by the business. The Council carried out further monitoring to prove a nuisance and discussed matters with legal services.
48. The Council says it must be reasonable in applying its policies. So even when EHO’s considered it necessary to serve a NAN, legal services felt the Council need to take further steps to comply with its graduated enforcement approach. This resulted in the letter to the business in December 2021 about the Council’s concerns and steps needed to prevent an NAN.
49. After sending the letter in December 2021 the Council considered there was a noticeable attitude shift from the business. It then became more proactive at abating the nuisance. The Council considers its approach has worked so far. If it had served a notice, it was likely the business would have appealed. This could have wasted a significant amount of time. The Council says it must strike a balance between informal negotiation and formal action which can take time to process through the courts. It considers that if it had taken a formal line earlier then it may not be in the positive position it is now in.
50. The Council says when it responded to Mr X’s stage 2 in June 2021 its intention was to proceed formally and to tell Mr X of milestones in the process. But due to events the Council changed from the plan of formal action. Following Mr X’s stage 2 complaint it now sends a leaflet to all complainants when complaining to environmental health to explain procedures and what to expect.
51. The Council hopes that following recent monitoring and updates with Mr X and Ms Y the statutory nuisance has abated due to measures put in place by the business. The Council will continue monitoring to verify this and be in regular contact with Mr X and Ms Y. The Council provided most updates to Ms Y from July 2021 after being advised Mr X had left the property. As Mr X left the place where the noise was experienced the Council would not keep him updated. The Council understands Mr X maybe living back at the property.

My assessment

52. The Council’s documents show it updated Mr X in October 2020 following noise monitoring at his property. But then there was no contact until officers updated him in June 2021. I consider it was fault by the Council not to update Mr X between October 2020 and June 2021 on his noise nuisance complaint. However, I do not consider it caused Mr X an injustice above his frustration at the lack of information. This is because evidence shows the Council was pursuing matters and the business took some immediate measures to reduce noise levels. There were also some delays outside of the Council’s control such as the noise consultant’s illness and bad weather hampering noise assessments. There was also no record of Mr X making further noise complaints or contacting the Council during that time. The Council apologised to Mr X for the delay in updating him when responding to his complaints in 2021. I consider the apology suitable action for the Council to take and remedies the frustration caused to Mr X.
53. The Council says Mr X has not been present at the property since July 2021, so it did not keep him informed after then. But it has updated Ms Y about its actions and progress as she confirmed she was the main contact for updates. The Council will continue to keep Ms Y updated on progress and include Mr X if he has returned to the property.
54. The Council explained it had been following its graduated approach to enforcement action and pursing matters informally as it considered it likely to be more successful than taking formal action. The documents show the Council has been pursuing the business to take action to mitigate the noise nuisance.
55. The Council decided not to serve a NAN in October 2020. Mr X may disagree with the decision, but we cannot question the merits of a decision itself without evidence of fault in the way it was made. I do not consider there was fault in this case. This is because the documents show officers were satisfied the business was taking the matter seriously and following recommendations made to try and abate the nuisance. This is a decision the Council is entitled to make and according to its noise policy. There is no evidence of fault in the way the Council reached this decision.
56. Once the Council became aware the business was not progressing the noise barrier it looked to take formal action. The Council sent the business a more formal letter in December 2021 setting out its concerns and actions required to prevent an NAN. The Council’s documents show this approach has been successful with the business responding well and being proactive. This resulted in the Council finding no evidence of a statutory noise nuisance from the site.
57. The evidence shows a delay in the Council sending the letter to the business. from August until it was issued in December 2021. I consider the Council let the case drift. This was fault by the Council, and it should have issued the letter much sooner. The Council says once it issued the letter in December 2021 the business responded more proactively. So, if the Council issued the letter earlier, I consider on the balance of probabilities this could have resolved matters sooner than it did. This is because the letter resulted in the business responding and taking action to resolve the issues.
58. But I do not consider the fault caused such a significant injustice to Mr X to warrant a remedy for him. This is because it was reported to the Council he was not living at the property during that time. So, he would not be suffering disturbance from the noise. In addition, there is no evidence of any reported complaints of noise caused by the business from Mr X , Ms Y, or other nearby residents during that time.
59. The Council’s documents do not mention officers referring Mr X to his private rights to take action under section 82 of the EPA. As paragraph 11 advises we consider is good practice for a council to do so. The Council may wish to review the noise nuisance leaflets it sends to complainants to ensure there is some reference to it if not already included.
60. In responding to the draft decision, the Council confirms it has changed its noise nuisance leaflet and now refers to section 82 in the information it provides.

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Final decision

61. I am completing my investigation. The Council was at fault as it failed to keep Mr X updated of its actions for several months. The Council has apologised to Mr X which is suitable action for it to take. The Council was also at fault as it failed to take the action it planned to do in 2021 for a period of time. But this fault has not caused Mr X an injustice as he had moved away from the area.

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Investigator's decision on behalf of the Ombudsman