Summary: Mr L complains about the contents of a Control of Pollution Act notice the Council served to a neighbouring construction site. He also complains about the Council’s lack of action about the noise from the property after neighbours moved in. The Ombudsman’s decision is the notice followed the Council’s own Code of Practice, so is not something we can criticise. And the Council conducted a proportionate investigation into the noise from the neighbours. We cannot question the merits of its conclusions. I have made a finding of fault, because of some missed and inaccurate advice. But no further action is needed, as the Council’s faults have not caused a significant injustice.

The complaint

1. The complainant, (whom I shall refer to as Mr L), complains the Council:
1. for two years, failed to take action to control construction noise;
2. with its Control of Pollution Act notice:

• set out time restrictions that were more generous than those used by some other local authorities;
• did not set an end date for the notice, so allowing the works to potentially go on indefinitely;
3. made its decision on whether the noise was a statutory nuisance after only visiting twice. It should have done more to visit and install noise monitoring equipment;
4. has not given a detailed enough explanation of the legal basis for its decisions to not take enforcement action against his neighbours.

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What I have and have not investigated

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. Mr L first contacted the Council about noise from his neighbour in September 2020. He complained to the Ombudsman at the beginning of September 2022. That means events between September 2020 and September 2021 are not something we would normally investigate. I see no reason Mr L could not have come to us earlier about these issues, as he has been taking action about the issues in other ways and the Council had signposted him to the Ombudsman in April 2022. So my decision is I will not investigate this earlier period.
4. But Mr L’s complaint about the contents of the Council’s notice is something I can consider. That is because he only found out about the contents of the notice after the Council’s June 2022 complaint response. As the time limit starts from when someone becomes aware of an issue, Mr L complained about this part of this complaint within 12 months.

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The Ombudsman’s role and powers

5. 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)
6. If there has been fault, we need to consider whether this caused an injustice. If there was an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr L;
• made enquiries of the Council and considered its response;
• spoken to Mr L;
• sent my draft decision to Mr L and the Council and considered their responses.

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What I found

Legal and administrative background

Control of Pollution Act

9. The Control of Pollution Act 1974 allows local authorities to control noise and environmental nuisance from building works by servicing a legal notice imposing noise and time requirements.
10. The Council has a Code of Practice for the Control of Pollution and Noise for Demolition and Construction Sites (developed in partnership with neighbouring authorities). This:

• says: “‘construction works’ in this Code applies to site activities, preparation, demolition, excavation, tunnelling works, building operations, structural alteration and maintenance and transportation of materials and spoil to or from the site.”
• sets out restrictions on the permitted hours of work at construction sites within the Council’s area.

Environmental Protection Act and statutory nuisance

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Noise can amount to a statutory nuisance.
12. 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.
13. There is no fixed point at which something becomes a statutory nuisance. A council’s officers will consider factors such as the timing, duration, and intensity of the alleged nuisance in reaching a professional judgement about whether the noise constituted a statutory nuisance.
14. The test a council must apply is to that of the ‘ordinary reasonable’ person. It is an objective test. The Council cannot, by law, consider the particular circumstances, illnesses, or sensitivity of an individual complainant.
15. 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. (Section 82 of the Environmental Protection Act 1990)

What happened

16. Mr L first contacted the Council in September 2020 about noise from construction work in the house that is next to his and his wife’s (Mrs L).
17. In May 2021, the Council issued the neighbours a notice under the Control of Pollution Act. This set limits on the times of the works at the house. The time restrictions in the notice were as set out in the Council’s Code (see paragraph 10).
18. After further contact from Mr L, the Council visited twice in August 2021. Its officer noted the neighbours had finished the construction work. And the house would soon be habitable. So it was arguable whether the house was still a ‘construction site’ (as defined by the Control of Pollution Act).
19. Council officers visited Mr and Mrs L in September. They considered whether noise from the neighbours amounted to a statutory nuisance, as defined by the EPA (see paragraphs 11-14). The Council’s view was the banging noise its officers witnessed was not excessive, so not a statutory nuisance.
20. Mr L continued to send the Council logs of noise they were witnessing. By then the neighbours had moved into the house.
21. In early 2022 Mr L complained to the Council. The Council’s first response, in February, advised its officers’ assessment was the noise Mr L was reporting did not amount to a statutory nuisance. His neighbours’ use of their property was reasonable, so the Council had no basis to interfere. But it partially upheld the complaint because:
• it had earlier given incorrect advice that all councils allow Saturday working on construction sites. It accepted Mr L had found a council that did not allow Saturday working. It apologised for giving the wrong advice;
• the Council could have provided noise recording equipment when Mr L requested it, although its view was it would not have made a significant difference; and
• it could have advised Mr L that the EPA allowed him to take his own action against statutory nuisance.
22. Mr L escalated the complaint. The Council’s last response was in April. It explained the reasons for its conclusion the neighbours did not amount to a statutory nuisance:
• the noise was related to renovation and DIY work which was within what the Council considered to be everyday household noise;

• the neighbours were not making the noise at unreasonable times. It made reference to the times set out in the Control of Pollution Act notice as a measure about what were reasonable times for the neighbours to be carrying out the DIY work; and
• there was no evidence the neighbours were generating the noise maliciously.

The response signposted Mr L to the Ombudsman.

23. Mr L complained to the Ombudsman in September. In response to my enquiries the Council advised:
• “Mr [L] has complained of noise from his neighbours on 27 days between the period of 26 November 2021 and 2 June 2022. The noises reported all occurred within the hours as detailed in the [Control of Pollution Act] notice. The noises were limited in duration - on some days only lasting minutes, on other days Mr [L] complains about noises such as sweeping, scraping, using a hand saw and talking. These activities are not malicious, not at unreasonable times and not unreasonable noises for home renovations. The council is not satisfied of the existence of a statutory nuisance”;
• its case officer did advise Mr L of his right to take his own action against his neighbours, but did not record this. The Council had learnt from that and the team now routinely records when they have provided details of how complainants can take their own action;
• the Council could have installed noise recording equipment. But it was “extremely unlikely that the noise monitoring equipment would have changed the outcome of the investigation”. This was because the Council did not dispute Mr and Mrs L had been affected by noise from the building works. The dispute was whether the noise was of a type the Council could take action about;
• it explained that, even if it had found a statutory nuisance, its enforcement action would have been to issue an abatement notice. And, in that notice, it could not impose more stringent restrictions on noisy activity than it had already permitted (in the Control of Pollution Act notice). That was why it made reference to those time restrictions in its complaint responses.

Was there fault by the Council?

The Control of Pollution Act notice

24. Mr L is critical of the contents of the notice the Council issued. But its time restrictions follow those set out in its Code of Practice. It is for each council to decide its own policy: it is not the Ombudsman’s role to tell a council what its policy should be. So I cannot uphold this part of the complaint.

The EPA statutory nuisance decision

25. After Mr L’s neighbours moved in the house was no longer a construction site. So the Control in Pollution Act notice no longer applied. The test after this was whether the neighbouring noise amounted to a statutory nuisance, as defined by the EPA. The Council’s view was the noise Mr L reported was DIY work, during reasonable hours. So it was of a type that could be interpreted by the courts as everyday household noise.
26. The Ombudsman cannot find fault where a council has taken appropriate steps to investigate noise nuisance and decide whether it is a statutory nuisance. My decision is the Council has done this. I can see it has considered the noise Mr L reported: its pattern, the type of noise and whether there was any malicious intent. It has spoken to Mr L and to his neighbours.
27. The Council has accepted it could have installed noise recording equipment. But I agree this would unlikely to have provided evidence that would have been of sufficient robustness for the Council to take further action. So, while there are further actions the Council could have taken, my decision is it carried out a proportionate investigation.
28. Mr L has described how the effects of the noise has affected Mrs L’s health. I can well understand how this has affected them. But the Council, by law, cannot take this into account. It must assess the noise against an objective test. So the Council has taken the correct approach in its assessment. I cannot criticise the Council for this, no matter how much Mr L disagrees.
29. Mr L says the Council should have provided fuller advice. My review is the Council has provided an adequate explanation for its decisions.
30. I note the Council has itself upheld Mr L’s complaints, and this is evidence of some administrative fault. But these faults did not cause a significant enough injustice to Mr L to warrant a further remedy (the Council has advised the Ombudsman of its learning from some of the fault it identified).

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Final decision

31. I make a finding of fault. But no further action is needed, as the faults identified have not caused a significant injustice.

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Investigator's decision on behalf of the Ombudsman