Summary: Miss X complained the Council was too slow to act when dealing with her complaint about noise coming from a business near to her home. We found fault because of poor communication, delays in taking decisive action and delayed complaint handling. This would have caused Miss X avoidable distress, frustration and uncertainty. To remedy the injustice caused, the Council has agreed to apologise to Miss X, make a payment to her and share this decision with staff so it can learn from mistakes.

The complaint

1. Miss X complains the Council has not acted in a timely manner to deal with a noise nuisance linked to an industrial unit near to her home. Specifically, she complains:
• the Council was too slow to take action regarding the noise nuisance;
• the Council took too long to decide to enforce its abatement notice which has led to the entire process needing to be started again; and
• communication from the Council was poor overall.
2. Miss X says this has caused avoidable distress and frustration and affected her health. She says it has also spoilt the enjoyment of her home.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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What I have and have not investigated

6. My investigation begins in February 2023 which is when the Council installed monitoring equipment at Miss X’s property. This is 12 months before the Council issued its stage two complaint response to Miss X in February 2024. I am therefore satisfied I can include this period in my investigation.
7. My investigation ends in April 2024 when Miss X brought her complaint to us.

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How I considered this complaint

8. I have considered all the information Miss X provided and discussed this complaint with her. I have also considered information provided by the Council.
9. Miss X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Statutory nuisances

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
11. Activities a council might decide are a statutory nuisance include noise from premises or vehicles, equipment or machinery in the street.
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 property; and/or
• injure health or be likely to injure health.

13. 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.
14. 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.
15. 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.
16. 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

17. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay issuing an abatement notice for a short period (seven days), to try to address the problem informally.
18. 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.
19. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. If they can show the court they have done everything reasonable to prevent or minimise the nuisance, the court may decide the abatement notice is not appropriate.

The Council’s complaints procedure

20. The Council’s complaints procedure says that stage one complaints should be responded to within 10 working days. If this is not possible, the complainant should be kept up to date.
21. The stage two part of the process says that the Council will try to send the response within 20 working days. Again, complainants should be kept updated if this timescale is not possible.

What happened

Background and context

22. I have set out below a summary of the key events. This is not meant to show everything that happened.
23. Miss X’s home is near to a commercial business unit. The business (Company A) uses extraction fans as part of its everyday work. Miss X had made historic contact with the Council, from 2018 onwards, about the noise coming from the fans. This was before the period of this investigation.
24. Miss X contacted the Council in late June 2022. She asked an officer who she had dealt with before (Officer J) to visit her property as the fans were very noisy and she wanted him to witness it.
25. Throughout the second half of 2022 and the early part of 2023, the Council chose to informally negotiate with Company A. It wanted to see if issues could successfully be sorted out without the need for formal enforcement action. When this did not resolve issues, the Council took a more direct approach.

2023

26. On 7 February 2023, the Council installed monitoring equipment at Miss X’s home for three days. Miss X chased the Council for news on 7 March 2023. Officer J responded on 20 March 2023 saying he would review the recordings by 23 March.
27. Officer J reviewed the recordings on 30 March 2023. The Council decided the recordings showed that on balance, the noise was ‘likely to cause a statutory nuisance’. It decided to give Company A seven days to respond before serving an abatement notice.
28. On 31 March 2023, the Council told Miss X it would give Company A until 17 April to respond. Company A responded on 4 April 2024 to say it had asked a specialist company (who it had been in contact with for several months) to plan a solution to the problem.
29. Miss X chased the Council for an update on 14 April 2023.
30. On 25 April 2023, Officer J advised Miss X the Council was happy with Company A’s response, but that an abatement notice would be served if there was no progress.
31. The Council hand delivered Company A an abatement notice on 19 May 2023. The Council updated Miss X on the same day.
32. The Council updated Miss X in mid-June 2023 after further emails to and from Company A about the proposed works.
33. On 22 June 2023, Company A said there were various stages to the works needing to be carried out and that stage one had now been done. It asked the Council to come and take noise readings to check progress. The Council said it would check its availability to go out over the next week. The Council did not then contact Company A to arrange a visit.
34. Miss X emailed the Council at the end of the month and throughout the second half of July 2023 to say stage one of the works had made no difference.
35. On 8 August 2023, the Council then reviewed the case. It noted the equipment needed to take noise recordings was being used elsewhere and then out for calibration and that the weather had been poor. Officer J emailed Miss X to say it would arrange a visit to Company A in September 2023.
36. On a visit to the site at the end of August 2023, the Council took noise readings. It reviewed these on 11 September 2023. The Council decided there had been no significant change even though stage one of the remedial works had been completed.
37. On 12 September 2023, the Council wrote to Company A to ask it what it would do to move matters forward. It wrote to Miss X on the same day to update her.
38. Miss X made a formal complaint to the Council on 27 September 2023 and added to this on 10 October 2023. She complained the Council took too long to respond to her requests for reviews. She also said it was giving Company A extensions to get work done without considering the effect the noise had on her.
39. By 17 October 2023 and after chases from Miss X, the Council had heard no more from Company A about its proposed next steps. The Council decided it needed to gather evidence from her property so it could look at prosecuting Company A.
40. The Council sent its stage one complaint response on 20 October 2023. It repeated the information it had already shared with her and said the officer she was dealing with was aiming to update her with a timeline in the next week.
41. Miss X escalated her complaint to stage two on the same day. She commented the abatement notice deadline for action was July 2023 but that nothing was happening.
42. At the beginning of November 2023, the Council again installed noise monitoring equipment inside Miss X’s property. The Council picked the monitoring equipment up on 8 November. Evidence shows the Council started to review recordings on 29 November 2023. Officer J told Miss X he had not been able to analyse the recordings as soon as he had hoped and wanted to update her in the next week. The Council did not do this.
43. At the end of December 2023, Officer J emailed Company A to say the Council would now consider legal action. The Council updated Miss X on 20 December 2023.

2024

44. Miss X chased updates from the Council throughout January 2024.
45. On 12 February 2024, the Council prepared a file of evidence for its enforcement decision panel, to discuss whether to prosecute Company A. The Council updated Miss X about this on 14 February.
46. On 15 February 2024, the Council sent its stage two response to Miss X. It apologised for the delay in its response. The Council said:
• it had served the abatement notice on 19 May 2023;
• that consideration was being given to prosecution at an enforcement decision panel (EDP) meeting to be held on 27 February;
• it apologised for delays in responding to her emails;
• it wanted to assure her it was taking necessary measures to enforce the abatement notice; and
• it upheld her complaint.
47. The Council signposted Miss X to the Ombudsman.
48. The Council’s EDP met at the end of March 2024, it decided to prosecute Company A.

Context from after the end of my investigation

49. After repeated chases for updates, Miss X contacted a senior manager (Officer L) at the end of July 2024 to see what was happening. At the beginning of August 2024, Officer L told Miss X the evidence gathered in November 2023 was now out of date to use in a prosecution and the process would have to be started again.
50. Miss X has advised noise equipment was installed at her property in September 2024. She says she has had no further contact from the Council since this time, despite chases and that the noise issues continue. Miss X is concerned any evidence gathered will be out of date again by the end of March 2025.

Analysis

Action taken about the noise nuisance

51. Miss X complains the Council was too slow to take action regarding the noise nuisance she had reported.
52. Monitoring equipment was at Miss X’s property from 7-10 February 2023. In response to my enquiries, the Council said its normal practice was to review noise recordings within two-three weeks. It said this was normally discussed with the complainant when picking up monitoring equipment.
53. The Council then took seven weeks to review evidence and update Miss X, despite two chases by her and assurances it would update her before this. I am satisfied, that in the circumstances of this complaint, this poor communication and delay is fault. It would have caused Miss X distress and frustration. I have made a recommendation below to remedy this injustice.
54. Section 80 of the EPA says that when the Council has identified a statutory nuisance, it must serve an abatement notice immediately. There is an exception if the noise is coming from premises. It can give occupiers seven days to take action to try and address issues before it must serve an abatement notice. If the noise issue itself is not dealt with in the seven-day period, the Council must serve an abatement notice.
55. The Council decided on 30 March 2023 that noise from the fan was likely to cause a statutory nuisance. Having been in informal negotiations with the Council since autumn 2022, Company A instructed a company to deal with the noise on day five of the seven-day period, on 4 April 2023. I am satisfied that on the balance of probabilities, it was clear the noise issue itself would not be dealt with in the remaining two days. The Council should then have taken decisive steps to issue an abatement notice as the noise had not been dealt with.
56. Instead, it did not then serve the abatement notice until 43 days after the seven-day grace period had ended. This is fault. There had already been a long period of informal negotiation. When the Council decided the noise was a statutory nuisance, it then delayed matters by not serving the abatement notice. This will have caused Miss X significant and avoidable distress and frustration. I have made a recommendation below to remedy this injustice.

Decision to take enforcement action after the abatement notice

57. Miss X complains the Council took too long to decide to enforce its abatement notice which has led to the entire process needing to be started again.
58. The abatement notice said remedial action should have been taken by 19 July 2023. On 22 June 2023, Company A had asked the Council to visit to review remedial works carried out. The Council did not contact Company A to arrange a date to carry out a review late in June as it said it would.
59. The Council reviewed the remedial works completed in June 2023 at the end of August 2023. In response to my enquiries, the Council said this delay was due to poor weather, annual leave, staffing issues and availability of monitoring equipment.
60. Monitoring equipment was again at Miss X’s property from 2-8 November 2023. Officer J started to review the recordings at the end of November and advised Miss X he was aiming to update her in the first week of December. After a chase from Miss X on 8 December, Officer J updated her on 20 December 2023. It took the Council six weeks to review and update on the recordings.
61. There was then a delay in presenting the case at the Council’s EDP. In response to my enquiries, the Council said this was due to Christmas and New Year holidays as well as significant staffing and workload issues within the relevant team.
62. The file for the EDP was not prepared until mid-February 2024, three days before the Council sent its stage two response.
63. Miss X chased updates from the Council in the second half of March 2024. On 26 March, the Council’s EDP met and agreed to take legal action against Company A. Miss X was not aware the meeting had taken place. Internal Council emails show it was aware of the short time left in which it could prosecute.
64. I am satisfied the repeated failure of the Council (linked to the abatement notice) to take decisive action in a timely manner and effectively communicate with Miss X is fault. It led to avoidable delays. This would have caused Miss X continued avoidable distress, frustration and uncertainty. I have made a recommendation below to remedy the injustice caused.

Communication from the Council – complaint handling

65. Miss X complains communication from the Council was poor overall. In response to my enquiries, the Council said complaint handling delays were caused by staffing issues.
66. The Council should have sent Miss X’s stage one complaint response after 10 working days, as per its policy. Instead, it sent it a further 12 working days after the deadline had passed. There is no evidence to say it had advised Miss X about the delay, which is also part of its policy.
67. Miss X’s stage two response was due 20 working days after escalation. The Council sent it a further three months after the 20 working-day deadline had passed. There is again no evidence to say it had advised Miss X about the delay in response.
68. I am satisfied the late stage one and two responses and lack of communication about them are fault. This would have caused Miss X distress, frustration and uncertainty whilst she waited for the Council to formally respond to her complaints. I have made a recommendation below to remedy the injustice caused.

General communication

69. In response to my enquiries, the Council offered its apologies to Miss X and said that communication with her could have been more frequent. I acknowledge there were many occasions when the Council communicated with Miss X in a timely manner. However, I also consider there were times when Miss X was chasing for updates as to what was happening.
70. Further to the examples already given above, Miss X experienced poor communication through:
• repeated contacts in July 2023 about progress regarding the abatement notice which were not answered until 8 August 2023; and
• repeated requests for updates in January and early-February 2024 which were not answered until 14 February 2024.
71. There are no set guidelines for how long it should take officers to respond. However, I am satisfied, that in the circumstances of this complaint, Miss X experienced poor communication from the Council on numerous occasions with either delayed responses or no response at all. This is fault. It would have caused Miss X continued and avoidable distress and frustration. I have made a recommendation below to remedy the injustice caused.

The Ombudsman’s guidance on remedies for statutory nuisance

72. This sets out our view on how the injustice to a complainant can be remedied. Sometimes this can be done with an apology. On other occasions, we make recommendations of symbolic payments to provide further remedy to an apology.
73. Our guidance says that if, on the balance of probabilities, a properly conducted investigation would have led to action to address the nuisance sooner, we will usually recommend a symbolic payment for loss of amenity in the range of £200 to £500 a month. We consider the severity of the loss and the circumstances of the complaint.
74. In the circumstances of this complaint and on the balance of probabilities, I am satisfied that if the Council had taken timely and decisive action throughout the process when it had taken noise recordings in February 2023, then the outcome of the investigation would have been decided sooner. My recommendations below reflect this.

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Agreed action

75. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise for the injustice caused by the identified fault;
• make a symbolic payment to Miss X of £300 to recognise the distress and uncertainty caused by the identified injustice;
• make a symbolic payment to Miss X of £2000. This is at £200 per month from late February 2023 when the Council delayed reviewing noise recordings to April 2024 when Miss X brought her complaint to us. It does not include the 60-day period when the abatement notice was in force or three weeks in November 2023 when the Council would have normally had time to review recordings from noise monitoring equipment; and
• share a copy of this decision with relevant staff and managers so they can learn from the errors and stop them re-occurring in future.
76. Within two weeks of the date of my final decision, the Council should contact Miss X to discuss what its proposed next steps are.
77. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
78. Payments made are in line with the Ombudsman’s guidance on remedies.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman