Summary: Miss X complains about the Council’s handling of her noise complaints since construction work started on her neighbour’s property in January 2021. The Council appears at fault for not doing enough to measure out of hours construction noise from the property and for taking too long to respond to Miss X’s complaints about its service. The Council has agreed to apologise, make a payment and offer to measure and act on any ongoing noise. The Council will also review its procedures to ensure it better tracks the progress of service complaints.

The complaint

1. Miss X complains about the Council’s handling of her noise complaints since construction works started on her neighbour’s property in January 2021. Miss X feels the Council has ignored her concerns about the impact of out of hours noise from the site and has delayed taking any kind of action. She is also frustrated by the delay in responding to her complaints about the Council’s service. Miss X believes the Council has not completed as many monitoring visits as it claims and has not done enough to ensure the noise nuisance was abated. Miss X wants the Council to acknowledge the distress, time and trouble she has gone to in reporting her complaints and to apologise for not doing more to help resolve the issue.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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. 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 spoken to Miss X and considered the information she has provided in support of her concerns.
6. I have considered the information the Council has provided in response to my enquiries.
7. Miss 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

Relevant guidance

Statutory Nuisance

8. The Environmental Protection Act 1990 (EPA) states that smoke, gases/fumes, dust, steam, odour, deposits or noise emitted from premises, including land, can be a statutory nuisance. If someone living in a council’s area complains about a statutory nuisance, the council must ‘take such steps as are reasonably practicable to investigate the complaint’.
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. If a council is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an Abatement Notice on the person responsible for the nuisance, or on the owner or occupier. The Council can prosecute someone if they fail to comply with an Abatement Notice.
14. Under the EPA, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. However, 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.
15. When the nuisance is created by construction works, section 60 of Control of Pollution Act (CPA) gives councils the power to serve a notice imposing requirements as to the way in which construction works are to be carried out. The notice can specify any of the following:

• a noise level;
• the plant or machinery that can be used;
• the hours when work can be done;
• steps that need to be taken to minimise noise.

16. Those failing to comply with the notice can be prosecuted and fined an unlimited amount, with further fines for each day that they fail to comply.
17. The hours of working that are acceptable are defined by the Council as:

• Monday to Friday 8:00 to 18:00;
• Saturday 8:00 to 13:00; and,
• Sunday and bank holidays: no noisy works permitted.

18. The Council’s policy for dealing with statutory nuisance complaints says the Council will complete three visits when the nuisance is expected to be occurring when the complaint relates to intermittent nuisance. The Council will not complete three visits if it established during its first visit that the matter does not amount to a statutory nuisance. Visits can be substituted by monitoring equipment or other assessment methods. The Council does not provide out of hours monitoring and there is no legal requirement to do so.
19. The Council’s policy for dealing with complaints about its service says it will acknowledge all complaints within three working days of receipt. The Council says it will respond to stage one complaints in 15 working days and stage two complaints in 20 working days.

What happened

20. Miss X first reported concerns about construction noise from her neighbour’s property in late January 2021. The Council acknowledged receipt of her online noise complaint and confirmed it would aim to resolve the matter within one month of receipt.
21. A Council Officer made a visit to Miss X’s neighbour on 5 February 2021. The Officer asked the builders working for the owner to extinguish a bonfire in the neighbour’s back garden, which the builders complied with. The Council followed up its visit with an email warning the property owner they were liable if any further bonfires were used on site to dispose of waste.
22. In March 2021, Miss X contacted the Council again to complain about further construction noise at her neighbour’s property. She also told the Council the builders had continued to have bonfires in the back garden.
23. The Council contacted the owner who confirmed the builders had been working outside the hours permitted. The Council issued the owner with a COPA Notice on 29 March 2021 as a result.
24. In early April 2021, the Council considered a recording made by Miss X of the construction noise from her neighbours and decided this did not demonstrate a breach of the COPA notice to warrant further action.
25. Miss X made a complaint to the Council’s Chief Executive on 11 April 2021. She felt the Council had not done enough to investigate or resolve the concerns she had raised about the noise from her neighbour’s property. The Chief Executive’s Personal Assistant acknowledged receipt of Miss X’s complaint and confirmed a manager from the relevant team would respond.
26. Miss X emailed the Chief Executive’s office again on 24 May 2021 as she had not received a response to her complaint. The Personal Assistant told her they would chase this up.
27. Miss X had further contact with the Environmental Health Officer dealing with her noise complaints during June and early July 2021. The Officer concluded there was insufficient evidence of breaches of the COPA notice issued to Miss X’s neighbour.
28. Miss X emailed the Chief Executive’s office again on 15 September 2021 as she had still not received the Council’s response to her complaint made in early April 2021. The new Head of Service for the Environmental Health Team responded to Miss X’s complaint on 21 September 2021. They explained the action the team had taken to try to informally resolve the concerns Miss X had raised about the construction noise. The Head of Service explained an Officer would complete monitoring visits to the site over the next four weekends to monitor the level of out of hours noise and would feedback the outcome of the visits to Miss X.
29. Miss X had further correspondence with the Head of Service following their stage one complaint response. She complained about the delay in the Council’s response and that it had been too late in offering monitoring visits as most of the noisy works had now been completed on site. Miss X was unhappy the Council had completely missed the opportunity to obtain meaningful evidence of statutory nuisance by her neighbour’s builders.
30. The Council completed visits to the neighbour’s property during December 2021 and did not record any out of hours or noisy works during these visits. The Council explained that it was not always possible for its Officers to be present when intermittent noise nuisances occurred.
31. Miss X brought her complaints to us in the new year because she remained unhappy with the Council’s handling and responses.

Was there fault causing injustice?

32. Miss X has not provided evidence or details of the site visits she believes Council Officers did not complete to her neighbour’s property. In the absence of this and clear evidence which shows the Officer records on site visits, I am not persuaded the Council has sought to fabricate any of the monitoring visits it says it made. The Council was also entitled to undertake other action, such as calls and contact with the property owner to informally resolve the issues Miss X and her family were experiencing with their neighbour’s construction noise.
33. Council Officers are also entitled to reach a professional view on whether the noise they witnessed constituted a statutory noise nuisance. We cannot question the merits of such professional judgement where there is no evidence of fault in the way the decision was reached.
34. The Council’s significant delay in responding to Miss X’s service complaints was also fault which caused injustice. Miss X had to wait more than five months for a substantive response to her concerns and had to chase the response on at least two occasions. Even then, she received no apology or recognition for the impact of this delay from the Council. I can understand why Miss X and her family were frustrated and felt their concerns were being ignored by the Council.
35. The opportunity to take any meaningful action to capture substantive evidence of the noise nuisance has been missed by the Council’s delay in responding to Miss X’s complaint. This has left Miss X with uncertainty about the outcome of the Council’s investigation into her noise complaints.
36. Miss X tells us the noise from her neighbours continues and she feels they have been allowed flout the Council’s rules on hours of working. My recommendations seek to address the injustice Miss X had experienced as the result of the Council’s faults and to help address the ongoing issues she and her family are having.

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Agreed action

37. Within one month of my final decision, the Council has agreed to:

• apologise to Miss X for injustice caused by the faults identified in this decision statement;
• make a payment of £300 to Miss X in recognition of the time, trouble and uncertainty caused by the Council’s faults;
• offer to discuss with Miss X any ongoing levels of construction noise out of hours from her neighbour. If necessary, the Council should then gather evidence for a sufficient time to reach a view on whether further enforcement action is required against Miss X’s neighbour for noise nuisance and should feedback its conclusions to Miss X.

38. Within two months of my final decision, the Council will review its systems for monitoring service complaints to ensure responses are sent within the timescales specified in its complaints policy.
39. The Council should provide us with evidence to show it has completed the above actions.

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Investigator's decision on behalf of the Ombudsman