Summary: Mr X and Mr Y complained about the Council’s delays over several years with investigations relating to noise disturbances they reported. We found the Council at fault for missed opportunities to act under its statutory nuisance powers sooner and the time taken with retrospective planning applications. This caused significant uncertainty and frustration for Mr X and Mr Y. The Council has agreed to apologise and make symbolic payments to recognise the injustice caused.

The complaint

1. Mr X and Mr Y (the Complainants) complain about the Council's handling of, and delays with, their noise complaints about large external heating and ventilation units installed opposite their houses. They say the Council has failed to effectively investigate or take adequate action with the nuisance for several years while dealing with various retrospective planning applications alongside this. This has caused them significant frustration and distress, as well as enduring the intrusive noise disturbance.

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The Ombudsman’s role and powers

2. 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)
3. 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).
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred (Local Government Act 1974, sections 26(1), 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. Mr X and Mr Y’s complaint relates to matters since 2021. Part of the complaint is therefore late (see Paragraph 5). I will not consider as far back as 2021 as they could have come to us at the time about this specific period.
8. However, I have decided to exercise discretion to consider from 2022 to November 2024. This is because there is a seasonal element, with Mr X and Mr Y continuing to bring their concerns to the Council’s attention throughout, they believed the Council was taking ongoing action and were waiting on the outcome of a planning application in the interim, before finally coming to us.
9. Mr X has made a further complaint about the Council’s actions specifically between November 2024 and February 2025, where it had established a statutory nuisance. These are new events since Mr X’s original complaint to the Council. Mr X is entitled to bring a separate complaint to us about these additional matters.
10. I have referred to events prior to, and since, the above dates for relevant context, but they are not specifically within my consideration.

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How I considered this complaint

11. I discussed the complaint with the complainants and considered their views and information they provided.
12. I made enquiries of the Council and considered its written responses and information it provided, as well as relevant law, policy and guidance.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Planning enforcement

14. Councils can take enforcement action if they find planning rules have been breached. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Councils may decide to take informal action or not to act at all. Informal action might include requesting submission of a planning application so they can formally consider the issues.

Statutory nuisance

15. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
16. Activities a council might decide are a statutory nuisance include noise from premises, or equipment or machinery in the street. 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.

17. 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.
18. 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.

Background

19. Mr X and Mr Y are neighbours. They live opposite a public institution. Several years ago, the “Institution” installed large external air conditioning units. The Complainants say these cause noise disturbances of a low frequency and penetrating noise. But the issue would be worse during the winter, with the units also running at night on a louder setting to stop them from freezing. Mr X reported this to the Council in 2021.
20. They live on a relatively busy road where there can be high levels of traffic. They said the units would often operate outside the hours of 7.30am and 4.30pm including weekends, evenings and early hours of the morning. They had moved out of their front bedrooms (which face towards the Institution) to avoid the noise.

2021

21. In January 2021, the Council’s Environmental Health (“EH”) team registered Mr X’s noise complaint about the units. The EH officer contacted Planning and the Institution. They visited the site, noting audible noise but also high levels of traffic would mask it.
22. In March 2021, Planning requested a retrospective planning application from the Institution. In June 2021, Planning contacted EH about the noise concerns. It was aware the four-year period for enforcement action would expire in two months. In July 2021, Planning received Application 1.
23. In October 2021, the EH officer gave consultee comments on Application 1. They recommended refusal as no noise report had been submitted to consider potential noise impacts. In November 2021, the Institution withdrew Application 1. It submitted Application 2 in December 2021, including a noise report from its consultant. This considered there were no material noise issues arising from the units.

What happened – from 2022

24. There has been a significant volume of contact between all parties. The below is not a detailed account of everything that happened or an exhaustive chronology. I have briefly summarised key relevant events.

2022

25. In early 2022, Mr X emailed Planning with an update about the noise from the units in colder weather, copying in EH. He invited visits.
26. Between February and April 2022, Planning contacted EH about the noise report. EH said this did not account for noise impact outside general working hours when it was clear the units operated outside of this, particularly in colder weather. They recommended refusal, or for a planning condition for a mitigation scheme to control the noise. Planning shared this with the Institution. The Institution denied its units ran outside the hours.
27. In September 2022, the EH officer analysed recordings from noise monitoring equipment (“NME”) taken from July in Mr Y’s house. Audible tonal noise could be heard outside of general working hours.
28. In October 2022, after the Institution said it fixed the settings, the Council carried out another NME exercise. This still recorded noise outside of working hours. The EH officer shared this with Planning. They wanted further noise monitoring during the colder months to trigger the frost settings. Without this, a decision on Application 2 would be further delayed.
29. In December 2022, Mr X emailed the EH officer about the increase in noise from the units. The EH officer updated Mr X. It needed to allocate the case to another officer. Planning shared the EH officer’s recommendations with the Institution.

2023

30. In February 2023, a new EH officer reviewed the case. EH made a site visit, they noted a humming noise clearly audible. It shared this with Planning.
31. In March 2023, the Institution’s maintenance supplier reported failing bearings were making the units excessively noisy. The EH officer said they needed to wait to see if this fixed the issue.
32. In May 2023, Mr X sent the EH officer an update about the noise. The EH officer emailed the Institution and confirmed it wanted an updated noise assessment once it did the repairs. They updated Mr X. The Institution told the Council the work was complete, and it would get a second noise assessment.
33. In early June 2023, Mr X emailed the EH officer as the noise continued, despite the repairs. He said it had been ongoing for a significant period and wanted a resolution to avoid another disturbed winter.
34. In early August 2023, the Institute sent a second noise report. It allowed for worse case of peak noise operation, and it said the noise levels were within permitted guidelines. It agreed to restrict the operation of the units to general working hours.
35. In October 2023, the EH officer discussed concerns with the second noise report with the Institution’s consultants as Mr X and Mr Y still reported noise. The EH officer visited Mr X and Mr Y to give an update and discuss the case history.
36. In November 2023, the EH officer reviewed the case. They acknowledged Mr X’s further noise reports but decided after the report and controls implemented, it did not have grounds to object to Application 2. They recommended Planning to put in specific operating times as conditions to minimise the noise. They updated Mr X and Mr Y, explaining how it came to its decision.
37. The EH officer said it would keep the noise complaint open and asked for records and dates of further significant disturbances. It said simply hearing the units would not be a statutory nuisance unless happening on a regular basis for a considerable period, such that it affected the enjoyment and use of their properties.
38. Between November and December 2023, Mr X and Mr Y reported further instances of increased noise. The EH officer made further site visits. They wanted to assess the noise at their properties to understand impact in the home.

2024

39. In early January 2024, the EH officer visited Mr Y and heard the noise from his property. Mr Y agreed to further NME. Mr X emailed the EH officer with various concerns about EH’s decision for Application 2. The EH officer noted his concerns and explained why they decided it was sufficient considering his points.
40. The EH officer emailed the Institution. The recordings evidenced noise could be clearly heard inside Mr Y’s house on a regular basis, causing sleep disturbance. There was still an issue that required attention.
41. In early February 2024, the EH officer emailed Mr X with an update. They said to take formal action; they needed to establish if a statutory nuisance existed. They asked Mr X to keep a diary record.
42. In March 2024, Mr X sent detailed diary noise logs and observations. The EH officer wanted to do a joint visit with the Institution’s noise consultant to witness the noise at the same time to review next steps. Mr X and Mr Y said they refused the offer because the Institute’s consultant previously produced inaccurate reports on the extent of the noise. They would have accepted an independent consultant.
43. The EH officer emailed Mr X explaining its actions, saying it needed further monitoring. They said a past assessment in 2022 was no longer valid as units had since been repaired.
44. In May 2024, Mr Y emailed the EH officer with concerns about evidence gathered now, as the tonal noises were not audible in mild weather but would return in the winter. The EH officer visited Mr X and Mr Y to discuss.
45. In July 2024, Mr X sent an update to the EH officer with recent noise observations. The EH officer noted the noise was minimal for now, and did not warrant further intervention. It would do further noise monitoring in winter.
46. In August 2024, the Institution withdrew Application 2.

Mr X’s complaints

47. In November 2023, Mr X made Complaint 1. Two weeks later, the Council responded at Stage One. It noted the extended timescales involved where it had limited staff resource and the impact the planning process had on the path of its investigation. Mr X escalated Complaint 1.
48. In January 2024, the Council’s EH team responded at Stage Two. It partially upheld his complaint. It noted the time taken was not normally considered acceptable, and as the planning process had not brought the matter to a conclusion, it expected its officers to intervene and consider what action it could take.
49. In June 2024, Mr X made Complaint 2 which included new information. In July 2024, the Council responded at Stage One. Planning addressed some outstanding points. It agreed the time taken for the applications was excessive and not acceptable, it apologised. It relied on EH as its input was crucial. In the meantime, advised EH had powers to address the noise if it was a statutory nuisance. In August 2024, Planning sent a further response. It said it reviewed further and decided the units had minimal visual impact so not considered as “development” and therefore did not require planning permission.
50. In September 2024, Mr X escalated his complaint further. In November 2024, he came to us. We asked the Council to complete the complaints process.
51. In January 2025, the Council responded to Mr X’s Complaint 2 escalation. It said he sent it to a previous director, who had since left, which contributed to the delay in responding. It apologised. It said it was dealing with the current noise issue, but it had acted throughout with the Institute to try and make improvements.

Events since Mr X’s complaint to us

52. In response to my enquiries, the Council said the issue with the units operating outside of working hours was first reported in November 2024 and was a new problem. This resulted in an EH officer making early morning visits.
53. Between November 2024 and February 2025, the Council established a statutory nuisance. It formally warned the Institution, and some progress has been made. Mr X says some noise has continued since, and fears the noise will remain a problem next winter.
54. In May 2025, the Council approved a Certificate of Lawfulness submitted by the Institute. The Council has since said it was satisfied the units were immune from planning enforcement action due to the passage of time.

Analysis

55. It is not our role to decide if councils should take enforcement action or make our own judgements and assess evidence provided to the Council. We consider whether there was fault in the way the Council investigated or what it considered when it made its decisions.
56. Two different Council teams have been involved. My focus is mainly on EH’s actions as it took the lead. I have also made general observations about Planning, and its impact on the case, as planning applications have largely run alongside this for years.

Environmental health – from 2022 to November 2023

57. In my view, EH generally took reasonable steps to consider the matter from 2022. It took on board Mr X and Mr Y’s further reports and gathered information. This included recordings which supported the noise continued outside of working hours. It challenged and tried to informally address issues with the Institute. The Institute would come back to EH with further information or with the action it had taken, to which the Council would reassess. The Council was entitled to allow opportunity for the Institute to try and resolve the noise. Some of the time taken here was outside the Council’s control and dependent on the Institution. But I note there were also some fault with periods of inactivity by the Council, such as taking months to follow up with the Institute or the complainants, and with changes in officers.

Environmental health – from November 2023 to November 2024

58. I do not consider there was fault in what EH considered when it decided it could no longer object to Application 2 in November 2023. While Mr X and Mr Y disagreed, it was a decision the Council was entitled to make in its professional view.
59. But it was at this point the EH team appeared to consider the use of its specific statutory nuisance powers. It gathered further recordings, made some site visits but effective action drifted in the spring and summer of 2024 until November 2024. I am not formally finding fault on this part. I recognise this was impacted by Mr X and Mr Y’s reluctance with the timing of the Council’s enquiries with the mild weather and refusing a joint visit with the EH officer and the Institute’s noise consultant. As there were conflicts with evidence, this was an opportunity for all parties to experience the noise in real time together. I recognise Mr X and Mr Y’s reasons, but that was their choice.
60. While I do not criticise EH’s broad actions, I am concerned with the timescales involved, its investigation approach and wider effects of this. I address this in more detail below.

Environmental health – general

61. From 2022, I consider the Council has generally been in regular contact with the complainants. It acknowledged their concerns, answered queries and gave updates where it could. I do not have significant concerns with the Council’s overall communication.
62. Mr X and Mr Y mainly framed their reports as noise complaints. But in my view, EH’s enquiries from 2022 focused on its specialist knowledge for the planning applications, to make it acceptable in planning terms (which is a different test of harm from a statutory nuisance). It was entitled to do this at the start.
63. But after significant delays progressing Application 2, alongside Mr X and Mr Y reports about the ongoing noise, it should have re-reviewed its approach. I consider the Council missed opportunities to conduct a specific statutory nuisance investigation much sooner than it did, rather than from November 2023. Councils also have a reactive duty to investigate potential nuisances under Environmental Act legislation and its powers can result in direct enforceable action. It could have done this concurrently, using the same evidence gathered, and it may have been able to intervene sooner. This is fault. The Council accepted this in a complaint response to Mr X.
64. I appreciate various complexities with the nature of the noise, its unpredictability, and other background factors made it difficult to investigate as a statutory nuisance. The Council also said it could not make out of hours visits prior to November 2024 due to its resources and availability at the time. This is service failure leading to further missed opportunities for targeted visits sooner, which was at the heart of Mr X and Mr Y’s complaints. EH also could have done its own noise assessment rather than relying on the Institution, which had already been subject to delays and unreliability.
65. These faults have caused significant frustration and distress to Mr X and Mr Y. On balance, I am unable to say whether it would have established a statutory nuisance had it done this sooner (as there are too many variables). But this creates injustice with considerable uncertainty for Mr X and Mr Y on whether this could have made a difference to their noise situation earlier.
66. Since Mr X’s complaint to us, the EH has acted under its statutory nuisance powers against the Institution. The Council said it was because of new information about the units operating outside of hours, but I disagree, as Mr X and Mr Y have consistently said this from the start. While I am not specifically investigating this period, this adds weight to the uncertainty on whether it could have done this sooner.

Planning

67. We would not expect the Council to take enforcement action while there is a live planning application which may regularise issues. It appears Planning shifted some of the responsibility and relied heavily on EH to carry out work to make technical recommendations about noise. But even after EH did this in November 2023, Application 2 remained undecided for a significantly long time before it was withdrawn in August 2024.
68. Additionally, Planning knew the four-year time limit expired in late 2021. While it accepted Application 1 just before this, the Institution later resubmitted Application 2. It then took over two and half years to review and decide the units did not need planning permission. The Council has explained the reasons for this, which is a professional merits decision. However, on balance, Planning should have monitored progress and been able to decide this much sooner in the intervening period since 2022. Given the amount of time it took, this is fault. This raised Mr X and Mr Y’s expectations for a significant period along with their time and trouble.
69. Ultimately, the Council’s position is it could not have taken planning enforcement action anyway. But this is further injustice with uncertainty for Mr X and Mr Y, and had it not been for this fault, if it could have affected the focus of the Council’s investigations into the noise and led to a different outcome sooner.

Complaint handling

70. Mr X raised several points over two complaints and the Council may have confused which elements it answered and by which team. However, there was a delay of four months by the Council to provide a final response to Mr X’s Complaint 2 escalation. It said it was because Mr X sent it to a previous director who had since left. Mr X disputes this. In either event, in whatever way Mr X may have submitted it, it was for the Council to respond in a timely manner, and it failed to do so. This is fault, causing additional frustration to Mr X.

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Action

71. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
72. Within one month of the final decision:
• Apologise to Mr X and Mr Y in writing (in line with our guidance on making an effective apology) for the injustice caused by the faults identified; and
• Pay Mr X and Mr Y a symbolic payment of £400 each to recognise their significant uncertainty, distress and frustration, and time and trouble.
73. Within three months of the final decision:
• It should use this complaint as a case study to identify and review what changes it should make to avoid future longstanding delays in making decisions where complaints involve both Planning and Environmental Health. This should include practices of how it monitors undecided planning applications, and what factors it should consider and at what point to decide if it should take intervening action under other powers available to it. It should share a copy of any steps or action plan it makes from this.
74. The Council should provide us with evidence it has complied with the above actions.

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Decision

75. I found fault causing injustice. The Council agreed to my recommendations to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman