Summary: We will not investigate this complaint about the Council’s investigation of noise nuisance from a neighbouring nursery business. There is insufficient evidence of fault which would warrant an investigation.

The complaint

1. Mrs X complained about the Council’s failure to properly investigate noise nuisance from children playing outside a nursery business in her building. She says the Council dismissed her complaint without proper investigation and that the business should not have been given planning approval so close to residential homes.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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 she has been affected by noise nuisance from an outside play area at a nursery business in her building. She asked the Council to investigate for statutory nuisance in 2024. The Council wrote to her and told her it would not investigate because children playing was considered to be normal domestic noise and caselaw had proved that this could not constitute a statutory nuisance.
6. Mrs X made a formal complaint about the response and said that the Council had failed to understand that she was complaining about the operation of a business. She also wanted the Council to investigate how the business could have been granted permission in the first place in a residential area.
7. The Council accepted that it had not properly considered her complaint and carried out investigations into the planning, environmental and noise aspects of the nursery operation. The outcome of the investigation was received after she made her complaint to us.
8. The Council told her that its officers had decided there were no breaches of the planning conditions attached to the approval. The plans were approved in 2013 and residents, including Mrs X’s address, were notified of the proposals. The conditions permit use of the site from 9am to 5pm daily. There were no breaches of the environmental aspects of the planning approval or evidence of anti-social behaviour.
9. The Council also says it carried out noise observations and assessed data provided by Mrs X. Its officers do not consider the noise from children playing for limited periods to constitute a statutory nuisance. The Environmental Protection Act 1990 places a duty on councils to investigate reports of nuisance and to take reasonable steps to investigate any complaints of statutory nuisance that it receives. However, the council may consider that a nuisance is not being caused.
10. If the Council had considered the issue to be a statutory nuisance it would be required to serve an abatement notice. There is no duty to serve a notice if the Council decides there is no statutory nuisance, as in this case. These notices carry a right of appeal to the magistrates court and the resident can appeal if they believe the notice was unreasonable or incorrectly served.
11. 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.
12. We cannot overrule the Council’s decision on whether or not to take action. It isn’t our role to say whether the noise that someone is complaining about is a nuisance in law or whether action must be taken to reduce it. Only a qualified officer can decide if there is a statutory nuisance.

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Final decision

13. We will not investigate this complaint about the Council’s investigation of noise nuisance from a neighbouring nursery business. There is insufficient evidence of fault which would warrant an investigation.

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Investigator's decision on behalf of the Ombudsman