Summary: We will not investigate this complaint that the Council unreasonably served a man with an abatement notice due to noise nuisance. This is because the man had a right of appeal to court he could have used to challenge the notice, and anyway we could not achieve the outcome he wants from his complaint.

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We provide a free service, but must use public money carefully. We do not start an investigation if, for example, we decide we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

3. The law says we normally cannot investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Back to top

How I considered this complaint

4. I considered the information Mr B provided with his complaint. I also took account of the Ombudsman’s Assessment Code.

Back to top

My assessment

5. The Environmental Protection Act 1990 defines statutory noise nuisance as: “noise emitted from premises so as to be prejudicial to health or a nuisance.” The Act goes on to say that where a local authority is satisfied a statutory notice exists, or is likely to recur, it shall serve a notice on the person responsible requiring the abatement of the nuisance.
6. The Council served an abatement notice on Mr B after witnessing loud music coming from his property in the early hours of the morning.
7. Mr B then complained to the Council about the restriction imposed by the notice. Mr B said that because of his developmental disability he needs loud music to help him cope with the stress and anxiety he suffers in his accommodation. Mr B also pointed out that the Council had been aware of his needs for many years.
8. But we will not investigate Mr B’s complaint about this matter. In particular, the law says we usually cannot investigate a complaint where someone could take the matter to court. By law, anyone receiving an abatement notice has 21 days to appeal to the Magistrates Court if they want to challenge it. I note the Council’s notice informed Mr B about his appeal rights, and I see no reason why he should not be expected to have used those rights if he considered the notice was unjustified.
9. In any case, unlike the courts we have no powers to overturn abatement notices or reach our own finding about what qualifies as a statutory noise nuisance. Therefore I do not see we could achieve the main outcome Mr B wants from his complaint.

Back to top

Final decision

10. We will not investigate Mr B’s complaint about the unfairness of the Council’s decision to serve him with an abatement notice due to excessive noise from loud music. This is because Mr B had a right of appeal to court he could have used if he wanted to dispute the notice and, in any case, we cannot achieve the outcome he is seeking.

Back to top

Investigator's decision on behalf of the Ombudsman