Summary: Mr X says the Council has failed to deal with his complaints of noise from a nearby club. He says this caused him and his family distress. We have found fault in the actions of the Council for failing to issue a decision on the noise complaint and the Council has agreed to apologise to Mr X.

The complaint

1. Mr X says the Council has failed to deal with his complaints of noise from a nearby club.
2. Mr X says this caused him and his family distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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)
6. 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

7. I have exercised discretion to investigate matters from 2022. This is because I needed to consider the whole period to make a meaningful investigation.

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How I considered this complaint

8. I have reviewed the information provided by Mr X and have discussed the complaint with him on the telephone.
9. I have also considered the information the Council provided.
10. Both Mr X and the Council have provided comments on the draft decision. These have been considered before a final decision was issued.

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What I found

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’ such as noise from premises.
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. Councils will rely on suitably qualified officers 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.
14. 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.
15. If a council decides a noise amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop. The Environment Protection Act 1990 provides that where the person responsible for the nuisance cannot be found or the nuisance has not yet occurred, an abatement notice shall be served on the owner or occupier of the premises.
16. If a council decides that the noise made does not amount to a statutory nuisance it can continue to use informal intervention to try to solve the problem. Examples of such action may include writing to the person causing the nuisance or suggesting mediation.

What happened

17. Mr X complained to the Council in May 2022 about the action it was taking in relation to an ongoing noise complaint from a nearby club.
18. The Council responded a few days later to say it had re-opened a previous noise complaint Mr X had made. It said it would write to the club and send Mr X some diary sheets to complete. The Council also said it would make the licensing department aware of the noise complaint.
19. The Council held a meeting with the club, the licensing team and others in June 2022 where the Council agreed it would monitor the noise for two months. The Council held a follow up meeting in September 2022.
20. The Council sent a further complaint response in December 2022 which explained the action it had taken to Mr X. The Council said it had visited the club, installed monitoring equipment in Mr X’s property and held meetings to agree a way forward. The Council also said it had reviewed the clubs license and it had added a series of conditions.
21. Mr X raised further instances of noise with the Council between August 2023 and November 2023 and sent another complaint to the Council in September 2023.
22. The Council responded to Mr X’s complaint in October 2023 and said the licensing team had been carrying out pro-active spot checks and found the levels of noise occurring would not pose a nuisance.
23. Mr X escalated his complaint, and the Council issued a stage two response in October 2023 which explained it had made further visits to the club. The Council also told Mr X it would again install monitoring equipment at his property.
24. Mr X sent a further complaint to the Council in January 2024. The Council responded to say Mr X had made no recordings using the monitoring equipment it installed. The Council said it would reinstall the equipment again.
25. The Council installed monitoring equipment in Mr X’s property again in February 2024 and again Mr X made no recordings.

Analysis

26. The Ombudsman’s role is to review council’s adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information and given clear reasons for its decision, we generally cannot criticise it.
27. The Council took the steps I would expect to see to investigate potential ‘statutory nuisances’. It liaised with the club’s management, conducted site visits at the club and installed monitoring equipment in Mr X’s home. The Council also amended the conditions of the club’s license. I find no fault in the action the Council took to investigate the noise complaint.
28. However, I cannot see the Council made a decision about whether the noise amounted to a statutory nuisance. This is fault. I understand the Council did not issue a decision as it wanted to keep the matter under review.
29. The Council’s faults as identified would have caused Mr X frustration as he would have been unclear about what the Council had found.

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Agreed action

30. Within one month of a final decision the Council should:

• Write to Mr X to apologise for the faults identified.
• Remind staff in writing to confirm to complainants the outcome of investigations into whether a statutory nuisance has occurred.

31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have found fault in the Council failing to issue a decision about whether a statutory nuisance had occurred.

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Investigator's decision on behalf of the Ombudsman