Summary: Ms X complained the Council failed to issue an abatement notice despite witnessing a statutory noise nuisance from deliveries to two businesses. We found fault with the actions of the Council as it delayed serving an abatement notice to Company 1. We have also found fault with the Council’s communication with Ms X. The Council has agreed to apologise and increase its financial payment to remedy the injustice caused.

The complaint

1. Ms X complains the Council has failed to take enforcement action against an identified statutory noise nuisance from deliveries to two businesses close to her property. Ms X also said the Council failed to consider the impact of parking restrictions.
2. Ms X says this has caused her significant distress and has affected her wellbeing.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and reviewed the documents it provided in response to my enquiries.
7. Some of the information provided by the Council is protected by confidentiality and data protection. Though I have carefully considered this information, I have not disclosed it in this statement.
8. Ms X and the Council had the opportunity to comment on my draft decision. I will consider all comments received before making a final decision.

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What I found

Statutory nuisances

9. Councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. (Environmental Protection Act 1990 (EPA)
10. 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; and
• artificial light from premises.

11. 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.

12. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) 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.
13. 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.
14. 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.

Abatement notices

15. If a council identifies a statutory nuisance, it must immediately serve an abatement notice. The only exception to this is where the nuisance is noise from ‘premises’, which can mean either domestic or business. In such cases the council can delay serving the notice for seven days, to allow the perpetrator an opportunity to take steps to address it.
16. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
17. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Background

18. Ms X has complained about noise nuisance from deliveries to two businesses. Company 1 is a retail business. Ms X complained about deliveries taking place three times per week, using metal trolleys. Company 2 is a public house and licensed premises. The premises license for Company 2 includes the activities authorised by the license and its operating hours. The license does not include information about deliveries.

What happened

19. There has been a great deal of communication between Ms X and the Council about the matters complained about. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.
20. Relevant to this investigation, I have noted that within the Council’s borough all noisy deliveries should take place between 7:00a.m and 11:00p.m.
21. In August 2022, Council officers met with met with Ms X and Company 1. At the time, Company 1 was making five deliveries per week. Ms X also said the delivery vehicle was delivering goods in Road A which was on the opposite side of the road from where Ms X lived.
22. Company 1 agreed to reduce the deliveries from five to three times per week. It also agreed to start deliveries after 8:00a.m. The Council confirmed that Company 1 could legally park on Road A for the purpose of unloading and loading deliveries.
23. In November, Ms X contacted the Council on three separate occasions and reported delivery noise by Company 2. Ms X requested the Council install noise monitoring equipment. The Council said an Environmental Health Officer (EHO) would initially visit Ms X.
24. An EHO visited Ms X’s property. The EHO observed the delivery for Company 1. The EHO was not present for the delivery for Company 2 but spoke to staff about the noise issues Ms X had raised.
25. The EHO identified a statutory noise nuisance in relation to Company 1. The EHO said there was a possibility the Abatement Notice (notice) could be appealed.
26. Ms X made two further reports about delivery noise by Company 1 and Company 2. The Council told Ms X that it was seeking further advice about serving a notice on Company 1.
27. In January 2023, the Council told Ms X that it would serve the notice on Company 1 in one week. Ms X consistently chased the Council for an update and was told the notice could not be served as the EHO officer was on annual leave.
28. In February, Ms X complained to the Council about the noise from deliveries and parking of delivery vehicles in Road A. Ms X referred to deliveries to Company 1 and Company 2. Ms X also said the delivery vehicle to Company 2 parked near her property. Ms X said the delivery yard for Company 2 was in Road A and the vehicle parked on double yellow lines alongside the delivery yard.
29. The Council responded to Ms X’s complaint. The Council said it had liaised with its Highways Department, Parking Department and Public Protection and Licensing Team. The Council acknowledged the EHO was not present for the delivery to Company 2, but Ms X had shown him video footage of the delivery from that morning. The Council explained that dray vehicles delivering barrels to a public house were given concessions due to health and safety issues surrounding the delivery of such heavy items. The Council said the vehicle parked alongside the premises on Road A as it needed to be as near to the point of delivery as was practicable and it was unreasonable to expect delivery to occur from across the road or another point further down the road. The Council concluded the delivery was not considered as illegal parking and would not be enforced. The Council did not uphold this part of the complaint.
30. The Council noted the video evidence provided by Ms X showed the delivery vehicle dropped the barrels onto a red crash mat to silence the drop as a noise reduction measure. The barrels were then rolled into the service yard. The Council said the deliveries to Company 2 were taking place within permitted hours and the delivery team was using the correct equipment to drop and unload the barrels. The Council did not uphold this part of the complaint.
31. The Council’s response acknowledged the EHO was present for the delivery to Company 1 and witnessed statutory level noise. The Council acknowledged that it had a statutory obligation to serve the notice and had failed to do so. The Council said it had previously explained to Ms X the notice may be appealed and was therefore seeking further advice. The Council said the notice should have been served at the end of January but due to annual leave commitments, this had not happened. The Council accepted there had been a delay in the process and partially upheld this part of the complaint. The Council apologised to Ms X and agreed to expedite serving the notice to Company 1.
32. In March, Council officers met to discuss the case and agreed the evidence collected by the EHO in November 2022 was no longer permissible. Furthermore, on the possibility the notice could be appealed, it was necessary to record the noise levels, analyse the data and produce a report.
33. Ms X asked for her complaint to be escalated to stage two. Ms X said Company 1 was still creating a nuisance level of noise three days a week. Ms X said the Council had not experienced the noise from the barrels being rolled on the floor from deliveries to Company 2. She explained the crash mat did not reduce the noise of each barrel being rolled one by one. Ms X asked why Company 2 could not use smaller delivery vehicles, as it had done in the past. Ms X also raised concerns about parking and deliveries on Road A.
34. The Council contacted Company 2. Company 2 explained most of its deliveries to public houses were made on a lorry or heavy goods vehicle, as it delivered to multiple sites on route. The Council sent Ms X an email and explained this was a business decision made by the company. The Council confirmed the delivery times were within the prescribed hours and the parking was legal for the purposes of unloading.
35. In March, the Council offered to install a noise monitoring application on Ms X’s phone. The Council said the EHO would also be taking noise level readings from the street to measure the general noise level of Road A. Ms X refused to use the application on her phone. The Council agreed to install noise monitoring equipment in Ms X’s property.
36. On 5 May, the Council responded to Ms X’s stage two complaint. It said the Council had taken the decision not to serve the notice on Company 1 due to the significant time passed. The Council said the EHO could attend Ms X’s flat again and would also be taking noise readings from the street level to compare this to the noise levels being experienced. The Council apologised to Ms X for the delay, poor communication and handling of the case. The Council offered to pay Ms X £200.
37. In mid-June, the Council installed noise monitoring equipment in Ms X’s property for two weeks. During July and August, Ms X continuously chased the Council for an update. In September, the Council completed an external noise survey.
38. The Council analysed the noise monitoring data and written notes from Ms X. The evidence showed there was a statutory noise nuisance in Ms X’s property from the deliveries to Company 1. The data also showed an increase in noise when barrels were dropped and delivered to Company 2. The Council sent Ms X a copy of its draft report.
39. In response to our enquiries the Council confirmed that:

• it served a statutory noise nuisance notice on Company 1 in November 2023. This included a schedule of works for Company 1 to comply with;
• the Council met with Company 1 in January 2024, and the notice remained in place; and
• it would not be taking any legal action against Company 2 on the basis that, noise mitigation measures have been implemented, the deliveries take place once a week, and delivery times and parking were both legal.

Parking on Road B

40. Ms X also complained that trucks could not unload on Road B after midday and were therefore using resident bays on Road A. Ms X said this was having a detrimental impact on residents on Road A.
41. In response to our enquiries the Council confirmed that in September 2023, it issued on average, 25 Penalty Charge Notices (PCN) on Road B and 2 PCNs on Road A, per day. The Council confirmed parking marshals patrol the area and wear body cameras to assist with their duties.
42. The Council explained there were several loading bays for businesses to load and unload on Road B and most deliveries were made between 07:00am to midday. Company 1 parked on Road A due to health and safety risks to staff when using the loading bays opposite their premises.

Analysis

43. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with a council’s decision.
44. I have focused my investigation on matters from November 2022 onwards. The Council took action before this date including meeting with Ms X and Company 1. The outcome of this meeting is set out in paragraphs 21 and 22 above.

Company 1

45. In November 2022, the Council identified the deliveries to Company 1 constituted a statutory noise nuisance. The law says the Council must serve an abatement notice if it witnesses a statutory nuisance, but it can delay this for seven days in the case of noise from premises to allow the perpetrator to rectify the problem. Therefore, in this case, the Council should have served an abatement notice by the end of November 2022, but it did not do so.
46. I note the Council’s reasons for wanting to gather more evidence, however it was not necessary for the Council to insist on this evidence to satisfy itself there was a statutory noise nuisance when it was satisfied that one had already occurred. The Council’s motivation for gathering further evidence was to strengthen its case if Company 1 decided to appeal. This resulted in a protracted investigation with no end in sight. Ultimately, the Council failed to act on its statutory duty, and this is fault.
47. The delay in issuing the notice had a significant negative impact on Ms X due to the noise from the deliveries leading to a service of a noise abatement notice, as discussed. The delay has left Ms X with significant uncertainty about whether the matter could have been resolved sooner if the Council had acted in accordance with its statutory duty. The Council exacerbated the situation by failing to provide timely responses to Ms X’s request for information. Further, the delay meant that Ms X was put to avoidable time and trouble in pursuing her complaints and engaging in further noise monitoring activity. This added to her distress and frustration.
48. I understand Ms X has accepted the offer of £200 made by the Council in its stage two response to her complaint. I also understand the Council has made this payment. However, I do not consider this goes far enough to remedy the significant injustice caused to Ms X over a significant period.

Company 2

49. In response to our enquiries the Council said it would not be taking any legal action against Company 2 as noise mitigation measures had been implemented, the deliveries were taking place once a week, and delivery times and parking were both legal.
50. The Council identified there was an increase in noise level when the delivery to Company 2 took place. However, at the time there was an overlap with the delivery to Company 1. The Council also said the increase could have been caused by noise in Ms X’s own property, refuse collection, an increase in traffic, construction noise or a cumulative noise effect from both deliveries and an increase in other noise which was quite normal as activity levels and traffic noise typically increased during the morning. The Council could therefore not determine with any certainty whether the increase in noise was caused solely by deliveries to Company 2.
51. The Council explained that even if the increase in noise levels was solely due to the delivery noise to Company 2, it did not consider this constituted statutory noise. In reaching this decision the Council has demonstrated it considered the frequency, time and duration of the delivery.
52. I understand that Ms X has a very strong contrary view about the noise that has affected her wellbeing. However, the Council has taken appropriate action to respond to Ms X’s reports. It carried out site investigations, installed noise monitoring equipment, considered the evidence Ms X provided and informally spoke to Company 2. Its view was that, while there was noise, it did not meet the legal thresholds to be considered a statutory nuisance. This was a decision the Council was entitled to take. I find no fault in the way the Council reached its decision.

Parking

53. The Council found Company 1’s delivery vehicle parked on double yellow lines. The Council confirmed that loading is allowed on double yellow lines. This is described in the Highways Code rule 247. The Council also found that Company 2 parked at the closest point to the rear of its premises and deliveries took place within permitted hours. I have found no fault in the way the Council reached its decisions here The Council also amended its website to reflect the parking requirements and exemptions for deliveries to public houses.
54. Ms X also complained that trucks could not unload on Road B after midday and were therefore using resident bays on Road A. It is clear there is an issue with parking as the Council has issued several PCNs. However, the data indicates limited disruption on Road A when compared to Road B. The Council’s enforcement officers have taken positive action by issuing PCNs on Road A and that it is what we would expect to see happen when parking violations have occurred. I have found no fault by the Council here.

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Agreed action

55. Within one month of my final decision the Council will:
1. apologise to Ms X for the injustice caused by the faults identified in this statement;
2. pay Ms X an additional £500 for the distress caused by the faults identified in this statement; and
3. take steps to ensure its staff are aware of when abatement notices should be served and to improve its communication with people using its service.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I have found fault by the Council causing an injustice to Ms X. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman