Summary: We will not investigate this complaint about the Council’s failure to prosecute a business for failing to comply with an abatement notice served for noise nuisance. There is insufficient evidence of fault which would warrant an investigation.

The complaint

1. Mrs X complained about the Council failing to enforce an abatement notice served on a business near her home which is causing statutory nuisance due to a noisy ventilation and extraction system. She says the notice expired in January 2024 and the nuisance is ongoing.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

3. I considered the information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X says the Council served an abatement notice against the owners of a nearby public house which has caused nuisance to her and neighbours due to a noisy extraction system. She says the owners continue to use the system which remains unchanged since the notice was issued.
6. The Council told Mrs X that the owners have bene co operating with its enforcement staff and recently have modified the switching system. However, they have also applied for planning permission to replace the current extraction system and this should resolve the problems in future. The Council has yet to approve the planning application and it does not believe seeking a prosecution in the magistrates court would be appropriate when it is the body for determining the changes to the system.
7. Prosecutions for breaches of abatement notices are a discretionary power and the evidence for this must be established on the criminal standard of proof (‘beyond a reasonable doubt’). The Council told Mrs X that it does not believe a prosecution for non-compliance would be appropriate when works have been proposed which show an intent to comply with the notice and not criminal intent to ignore it.
8. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
9. The Council has given a reasonable explanation to Mrs X for the reasons why it is not seeking a prosecution of the business at present.

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Final decision

10. We will not investigate this complaint about the Council’s failure to prosecute a business for failing to comply with an abatement notice served for noise nuisance. There is insufficient evidence of fault which would warrant an investigation.

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Investigator's decision on behalf of the Ombudsman