Summary: Ms D complains the Council failed to correctly investigate her reports of a noise nuisance from a nearby business. We have found evidence of fault in the Council’s first investigation and, therefore, uphold the complaint. We have completed the investigation because the Council agrees to pay Ms D financial redress.

The complaint

1. The complainant (whom I refer to as Ms D) says the Council failed to properly investigate her reports of a noise nuisance caused by a nearby business during 2021 and 2022.

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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 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 considered the information provided by Ms D. In addition, I asked the Council questions and examined its case records.
6. I shared my draft decision with both parties.

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What I found

What happened

7. On 8 April 2021 Ms D complained to the Council about noise caused by a nearby business. The case was allocated to an Officer to investigate. He visited the site on 21 April and checked when equipment was used. He also visited Ms D and sought to witness the noise. His subsequent report found the noise was consistent with that type of commercial unit. He wrote, “I do not believe this…to be a nuisance”. However, he would seek to get the business to mitigate the noise where possible but because it was not a statutory noise nuisance (SNN) he could not force the owner to act.
8. In May the Officer told the business the noise was an issue and asked them to carry out works. That month the Council installed a digital noise recorder (DAT) at Ms D’s homer. It also collected her diary sheets. In July the Officer confirmed the business would install lagging to reduce the noise. The Officer carried out another noise monitoring visit at Ms D’s home at the end of August. There is no evidence that he witnessed a SNN. In September the Officer notified the business that complaints continued to be received and the Council could carry out further monitoring. He visited the business in October and took decibel readings. The business would look at fitting further noise cancelling equipment. At the end of October, the Officer produced another report focusing on decibel readings despite noting these were not sufficient to say if there was a SNN. He made no reference to there being a SNN. In December the Officer gave information to the business about getting noise reducing measures fitted. On 28 January 2022 the Officer told the business he would allow two to three months for the noise to get resolved or would issue a Noise Abatement Notice. On the same day he emailed Ms D stating “I will … hand deliver a Noise Abatement Notice” the following week to the business. This did not happen.
9. The Council says the Officer then undertook additional monitoring, visiting sites near Ms D’s home to evidence if there was a SNN. He did not visit Ms D or contact her. Based on the noise and duration he changed his opinion and decided there was no SNN. I have seen no substantial contemporaneous notes for those periods of monitoring.
10. On 11 March 2022 the Officer emailed Ms D and stated he had not served a Noise Abatement Notice because after revisiting the area he now considered there was no SNN. He would pursue the business to reduce noise but could not take any formal action. At the start of April Ms D made a formal complaint. The Council replied on 19 April. It had met with the Officer who admitted he “may have mistakenly raised [Ms D’s] expectations without determining the full aspects of his investigation”. The Council said that visits after January 2022 found no evidence of a SNN and so the Officer changed his view. The Council offered to visit and install a DAT again to establish if there was a SNN. It subsequently told Ms D that visits were not made to her home after January 2022 because Officers often use surrounding areas to gather information. It also clarified that assessing a SNN was based on the Officer’s assessment of the type of noise, frequency, duration, setting, etc.
11. The Council installed a DAT at Ms D’s home in April and considered her diary sheets. A Senior Officer assessed the evidence and produced a report. He found there was no SNN. Noise was expected from the site and levels were not excessive and were consistent with the nature of the site. The Council could not force the business to take action because there was no SNN. In June the Officer left the Council. Ms D asked the Council to review her complaint. The Council replied on 23 June. It went through the factors considered for a SNN. It said the original Officer had not been “wholly satisfied” there was a SNN and so did a number of visits to reach a view. Time stamps on DAT recorders had been incorrect, this was due to the clock changes twice a year. It had reminded staff about the need to check. However, this discrepancy did not have a significant impact on the findings that there was no SNN.

What should have happened

12. When the Council receives a report about a possible SNN the case is allocated to an Officer to investigate. The Officer will raise the matter with the alleged perpetrator. Site visits are carried out and if the alleged perpetrator engages with the Council the Officer should give advice on reducing noise. If reports about noise continue the Council can install a DAT recorder at the complainant’s home. This would be assessed alongside diary sheets. However, the Officer should witness a SNN themselves taking account of the site, duration of noise, time of day, frequency, etc. It is for the Officer to use their professional judgement in determining whether a SNN exists. They should record their findings. If a SNN is found the Council can serve a Noise Abatement Notice on the perpetrator. If no SNN is evidenced the Council can close the case. The Council cannot serve a Noise Abatement Notice or force a perpetrator to take action unless a SNN is evidenced.

Was there fault by the Council

13. There is fault by the Council in respect of the Officer’s investigation which was unnecessarily protracted and incorrectly threatened to serve a Noise Abatement Notice despite no evidence of a SNN.
14. In April 2021 the Officer noted the noise was consistent with the type of premises and he did not believe it was a SNN. However, the Officer chose to pursue the case and made contradictory statements, such as May 2021 telling the business the noise was an issue without any evidence of a SNN. Decibel levels feature prominently in his reports but, as he notes himself, those are not evidence of a SNN. Whilst I appreciate that he was seeking to work with the business to reduce any noise I question why this was carried out over several months after no evidence of a SNN. At a minimum it would have been reasonable to reach a prompt view on the case and notify Ms D. Instead in January 2022, eight months after noting there was no SNN, the Officer told Ms D he was issuing a Noise Abatement Notice. This was clearly incorrect because he had no basis to do so. The Officer then undertook further monitoring without notifying Ms D. This was contrary to all his previous actions where he had kept Ms D informed and visited her home. Whilst an officer can assess noise from other sites good practice would have been to keep Ms D updated at a minimum. Instead, the Officer then reversed his findings in March with a minimal explanation to Ms D.
15. Whilst it is reasonable for the Council to ensure it has considered all the key factors in a case before reaching a final view it is not reasonable to stretch out an investigation unnecessarily. In my view the Officer was in a position to reach a view in May 2021. Nothing that he subsequently did added to his findings significantly. The additional time taken had an impact on Ms D and was using limited Council resources.
16. There is no evidence of fault by the Council in respect of the second noise investigation carried out by a Senior Officer. He took account of any issue with an incorrect time stamp on the DAT recorder and assessed all the evidence. He gave a detailed explanation of his findings in a timely manner. Ms D may disagree with the decision taken by the Council, but the Ombudsman will not question the merits of such decisions in the absence of fault.

Did the fault cause an injustice

17. The faults by the Council meant Ms D, understandably, expected the Council to take formal action against the business and so was extremely disappointed when it reversed its view. She had to wait longer than necessary to get a decision on the case. I note the Council has already acknowledged the Officers actions had “mistakenly raised” Ms D’s expectations.

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Agreed action

18. The Council has agreed to offer its formal apologies to Ms D for the faults identified in this statement and pay £150 for distress caused by mistakenly raising Ms D’s expectations.
19. In addition, it will remind officers about the need for proportionate investigations to avoid a repetition of the issues found by the Ombudsman.
20. The Council should provide us with evidence it has complied with the above actions within the next four weeks.

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Final decision

21. I have upheld the complaint and completed the investigation.

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Investigator's decision on behalf of the Ombudsman