Summary: Mr X complained that the Council failed to respond properly about unacceptable noise from a nearby business. There is no fault by the Council.

The complaint

1. Mr X complains the Council failed to deal with his reports of unacceptable noise from a machine in a commercial building. He also complains it failed to properly respond to his complaints about the matter.
2. Mr X says this caused him severe distress and affected his mental wellbeing.
3. Mr X also complained regarding noise from other sources and other properties.

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The Ombudsman’s role and powers

4. 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).
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. I have investigated the Council’s handling of Mr X’s reports about machine noise as set out in paragraphs 1 and 2.
7. Mr X has also complained regarding noise from other sources. However, I do not intend to investigate these matters as the Council had not had an opportunity to fully consider these reports before Mr X made his complaint to the Ombudsman.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a 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;
• 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.
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, 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.

What happened

20. In July 2024 Mr X reported loud noise from a commercial building.
21. The Council’s officers visited Mr X and the premises within five days of his first report. It noted there was very loud noise coming from machinery in a building which was not insulated. Officers heard the noise within Mr X’s home.
22. The Council considered the noise was a statutory nuisance. The Council discussed the noise with the premises manager, who agreed the company would reduce the impact of the noise.
23. The next day an officer called the company and it explained it was taking action to reduce the noise by:
• Placing the machine on noise reducing floor surface
• Insulating the building
• Replacing the machine with a quieter machine
• Reducing the use of the machine to a few hours a day.
24. Shortly afterwards Mr X complained he had contacted the Council eight days earlier and it had said an officer would visit. But the Council did not visit. He said he had to call again and then the Council visited the site. However, when he reported further noise the day after the visit, the Council refused to visit again.
25. Mr X said he was confused because the Council’s website stated “if the noise continues our officers will need to visit your property to hear the noise for themselves, so it is important you contact the monitoring service whilst the noise is happening.” He asked how the Council would deal with his noise reports.
26. Mr X then reported further noise and complained the Council was ignoring him and not responding when he called.
27. Following a telephone conversation with an environmental health manager, Mr X withdrew his complaint. But he said it would be helpful to have more information about the process for reporting industrial noise.
28. However, over the next few days Mr X reported further noise. The Council agreed it would visit but it could not stop the noise immediately.
29. Mr X said the noise was making him seriously ill. The Council contacted emergency services and made a safeguarding referral due to the comments Mr X made about his mental health.
30. In early August the Council revisited the premises. The Council wrote to Mr X and confirmed the insulation work was 50% complete. It considered the machine noise was much quieter. While it said further insulation work was required to reduce the noise level it was satisfied with the work the company had done so far. It said it had agreed the company could use the machine for 2 hours a day.
31. The Council explained the Environmental Protection Act 1990 required it to assess noise according to a number of factors. The first of these was how reasonable the noise was judged by an average person. Another factor was the nature of the locality. In this case Mr X lived next to a factory and so must expect a degree of noise from the premises. The Council said it could not physically stop the noise. Even if it served an abatement notice it must still allow reasonable time for the company to carry out the works, typically 4-6 weeks.
32. The Council also explained that it had alerted the Police and its Safeguarding Adults team following Mr X’s emails. It noted his frustration but asked him to stop sending abusive emails to the Council.
33. Mr X complained further about the way the Council had handled his noise reports. He said a Council manager told him the insulation would be completed by early August, and there was no mention of the new machine. He also complained:
• The manager who said the noise was reduced had not visited earlier, so could not compare.
• Mr X had recorded noise on different days and there was no difference.
• Noise inside his home was still unacceptable.
• The company left the door open to the building so this made noise worse.
• The Council referred to how noise would be judged by an average person, but it ignored the fact that his neighbours also complained about extreme noise.
• The Council said he must reasonably expect noise in the locality, but he had only once in the last 10 years had cause to complain about noise.
• The noise was unacceptable to residents who worked nights.
• His own mental health was significantly affected.
34. Mr X sent videos of the noise and further emails.
35. The Council replied on 9 August 2024 the insulation works were continuing and would be completed in a few weeks. It said the company was operating for two hours a day as agreed. The Council said it would not take action while the works were progressing, and it could not stop the machine being used completely. It explained the works were not straightforward and would take some time.
36. In a response a few days later the Council asked Mr X to send evidence the company left the door open. But it said it could not stop the company as it was progressing an agreed plan. The Council asked Mr X not to send other videos, but it said he could put these to one side in case the Council needed them.
37. On 12 August Mr X reinstated his withdrawn complaint that the Council was ignoring him. He said he called the day before, but it had not called him back.
38. The Council replied on 20 August 2024 that it had investigated, visited and responded regarding his noise complaint. It recognised that noise mitigation was required and so upheld his noise complaint (report). This was balanced by the company already having started works to manage the noise levels. The Council required the works to be completed in a reasonable time frame and agreed a restricted use of the machine during weekdays. It said it could carry out monitoring when the works were completed.
39. On 22 August Mr X complained at stage two of the Council’s complaint procedure. He said:
• the Council had not responded to all his issues
• the Council referred to a reasonable time frame for completing the works, but it had only given an approximate time frame.
• The machine had operated outside agreed time frames twice causing unnecessary stress.
• An officer had asked him not to send any more evidence, and the noise team did not return his calls about visiting the site and monitoring the noise.
• In his view the Council was ignoring him.
• The Council should have stopped the noise immediately.
40. The Council contacted the company for an update. It said it had stopped using the machine for a week and was aiming to exchange the machine for a quieter one in the next two weeks. It gave information about other changes to reduce sound from the machine.
41. A few days later the Council visited Mr X. However, Mr X did not answer the door, and instead videoed the officer from inside his home. The officer told Mr X he could not hear any noise. The officer then left when Mr X requested it.
42. Mr X complained further that an officer had visited him unannounced, and this caused him alarm and distress. The officer said he could not hear any noise, which Mr X said was effectively gaslighting him. Mr X repeated his previous complaints, and stated the noise was unacceptable.
43. At the end of August the Council replied. It did not uphold Mr X’s complaint. It noted Mr X said it was ignoring him and did not return his calls. However, it said it was not ignoring him as there were records of substantial contact with him by email and by telephone. The Council said it had addressed the main issues raised in its stage one response and it had considered his concerns in line with its practices and procedures.
44. The Council noted Mr X said an officer told him not to send any more videos. However, it said an officer advised him to put the videos aside and complete noise diary sheets so the Council could consider noise overall over a period.
45. Mr X complained the Council had not visited and monitored the noise, but when an officer visited recently Mr X said it caused distress. The Council said its visit was to assist him and consider his concerns. It was working with the company to address Mr X’s noise concerns while balancing this with the needs of the business. Having considered Mr X’s videos and officers’ visits it observed noise levels had reduced, and it was continuing its work with the business to further this.

Analysis

46. 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 a complainant disagrees with the organisation’s decision.
47. The Council considered there was a statutory nuisance from the noise on its first visit. It then worked with the company to reduce the level of the noise to an acceptable level. It considered the noise was abated by 2 August 2024. I consider that in making its decision, the Council took account of relevant legislation, guidance, evidence from its own site visits, and information from residents. Based on the information provided, I am satisfied the Council followed the appropriate procedures when making its decision and therefore I cannot criticise it.
48. I have not found fault in the Council’s responses to Mr X’s complaints.

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Decision

49. I find no fault.

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Investigator's decision on behalf of the Ombudsman