Summary: Ms X complains the Council failed to respond to her complaint regarding noise from various premises. There is no evidence of fault by the Council causing injustice.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains that from March 2020 the Council failed to respond properly to her complaints about noise from:
• A working men’s club
• A public house
• A dog barking at a nearby property.
2. She says that as a result she cannot enjoy her home and this is affecting her mental health .

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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 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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What I have and have not investigated

5. I have investigated reports of noise regarding the matters in paragraph 1 from June 2022. I have not investigated complaints about reports before June 2022.
6. 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).
7. I do not consider there are good reasons to investigate matters that occurred more than 12 months before Ms X complained to the Ombudsman.

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How I considered this complaint

8. I have discussed the complaint with Ms X and considered the information she provided. I have made enquiries of the Council and considered the comments and documents it provided. Ms X and the Council had an opportunity to comment. I considered their comments before making a final decision.

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What I found

Legal and administrative background

Statutory nuisances

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
10. Activities a council might decide are a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on 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 property; and/or
• injure health or be likely to injure health.
12. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make 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 evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
14. The law says that a potential nuisance must be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the complainant because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
15. 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.

What happened

16. In 2022 Ms X complained about the Council’s failure to take action regarding noise from the club and the public house in 2022. She said she had raised many reports of noise.
17. In August 2022 the Council replied at stage one of its complaints procedure that its officers had carried out noise monitoring site visits on four occasions. The officers’ visits took place between 9.30 and 11.30 PM. They had not witnessed noise from the premises.
18. The Council said that it had offered to install noise monitoring equipment in Ms X’s home. The Council also explained
• the term “acoustic zone” which referred to the officer’s assessment of the character of the neighbourhood, or what could reasonably be expected to be heard in an area of that nature.
• The application of the ‘reasonable person test’ in determining statutory noise in relation to The Equalities Act 2010. The Council noted that due to Ms X’s disability the effect of the noise may be more significant than for others. However, an objective test must be applied when considering whether a statutory nuisance exists rather than subjective test, i.e. the effect upon the average person rather than upon the particular requirements or circumstances that may apply to a particular individual.
19. In August 2022 the Council installed noise monitoring equipment in Ms X’s home for a period of three weeks. However, there was insufficient evidence of noise that could be considered a statutory nuisance.
20. Ms X complained further at stage two the Council’s procedure.
21. In September the Council responded that it was satisfied it had carried out a suitable and sufficient investigation of her noise complaints. It said that it had not closed its investigation and it had explained how it could be progressed.
22. In October 2022 Ms X complained further about noise from the working men’s club and the pub. An officer visited the site in November but did not witness noise.
23. In January 2023 the Council replied to further contact from Ms X. It explained that evidence that the noise monitoring equipment recorded did not meet the threshold for statutory nuisance. However, it said it would install the equipment for a further period of time. The Council did not agree to Ms X’s request for it to install CCTV. It did not consider that this was appropriate or proportionate given the lack of other supporting evidence.
24. In February 2023 the Council installed noise monitoring equipment. However, this too did not gather sufficient evidence of noise from the club or the pub.
25. In March 2023 the Council wrote to Ms X and advised her that it considered both parties agreed the dispute was in deadlock. It gave Ms X details of her right to progress her complaint to the Ombudsman.
26. In May 2023 the Council advised Ms X that it had closed its investigation. It listed the visits it had undertaken and the noise monitoring equipment results. It said that it closed its investigation regarding the pub and the club because there was not sufficient evidence of noise that could be categorised as statutory nuisance. However, it said that this was pending a significant increase in noise levels and duration of noise. Ms X could complete diary sheets regarding increases in noise.
27. Ms X reported further noise from the pub and the club in May. The Council contacted the pub to advise it not to make noise out of hours. It also advised Ms X to complete diary sheets.
28. In June 2023 Ms X twice reported noise from a dog barking for long periods. She also complained about noise from the pub.
29. In July the Council replied it had explained previously Ms X’s complaint was in deadlock. It said local efforts to resolve the matter were exhausted. It considered that escalating her further concerns would not benefit either Ms X, or the Council.
30. In November 2023 Ms X complained to the Ombudsman.
31. In December 2023 the Council summarised its position. It said that
• it had contacted the pub regarding the reported after hours noise. It had asked Ms X to complete diary sheets if the noise continued.
• It asked Ms X to complete diary sheets about the dog barking. The Council could review the information it received to decide what action was suitable.
• noted Ms X’s concern about potential noise from the club at an event in the Christmas holiday period.
• It offered to arrange a meeting with Ms X. It said this showed its intention to assist Ms X and work collaboratively towards a resolution.
32. The Council repeated the offer of a meeting in February 2024 when Ms X raised further reports of noise and anti social behaviour.
33. Ms X replied that she had requested a meeting via Zoom several months before and said she could not meet during work hours in any case.
34. In its response to my enquiries the Council has acknowledged Ms X’s difficulty in meeting during work hours. It offered a meeting outside work hours and in a suitable place, as it recognises Ms X may feel intimidated by multiple officers being present.

Analysis

35. I have not seen evidence of fault by the Council in the way it considered Ms X’s reports of noise and her complaints regarding the Council’s handling of the matter. The Council’s officers visited several times to witness the reported noise. The Council installed noise monitoring equipment in Ms X’s home. It has explained the need for evidence and the requirements for considering statutory nuisance.
36. The Council responded to the matters Ms X raised in her complaint regarding the “acoustic zone” and how it considered the impact on her as a person with a disability. It explained the “reasonable person test”. There is no fault here.
37. The Council did not advise Ms X to complete diary sheets regarding the dog barking until December 2023. This delay was fault, but I do not consider this caused Ms X injustice. Ms X reported the noise three times and I do not consider the outcome would have changed.
38. The Council has offered to meet with Ms X, and it is willing to arrange a time and place that suits Ms X. I consider this is a suitable offer to assist in discussing the issues Ms X has raised, and exploring a potential resolution.

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Final decision

39. I have not found fault causing injustice. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman