Summary: We have no grounds to criticise the Council’s decision that a noise does not amount to a statutory nuisance. However, there was fault by the Council, because it has considered irrelevant factors as part of its decision-making. This did not cause an injustice to the complainant, but the Council has agreed to issue guidance to its staff.

The complaint

1. I will refer to the complainant as Miss D.
2. Miss D complains the Council has not taken action to enforce against a noise nuisance she is experiencing, emanating from a commercial premises near her home. Miss D says the noise disturbs her during both day and night, and she feels the Council has been contradictory and dismissive in its dealings with her.

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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 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)
4. 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)
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. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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What I have and have not investigated

7. Miss D’s complaint to the Ombudsman covers a period from 2020, to the date of her complaint in December 2024. However, as described at paragraph 5, the law says a person should approach us within 12 months of becoming aware of the issue they wish to complain about. Therefore, any part of Miss D’s complaint which predates December 2023 is late by this rule.
8. We have the discretion to disapply the time restriction where we consider it appropriate, but we must first be satisfied there are good reasons for a complainant’s delay in approaching us, and I am not satisfied such reasons exist in this case.
9. In particular, I am aware Miss D made a formal complaint to the Council in 2022 about events up to that point, at the end of which the Council signposted her to us; despite this, she chose not to pursue her complaint with us at that time. I do not consider we should reasonably consider those events now.
10. I have also seen no evidence to suggest it was unreasonable to expect Miss D to approach us earlier, if she wished to complain about events between then and the end of 2023.
11. For these reasons I will not exercise discretion to disapply the time restriction in this case; and this means I will not investigate anything that happened before December 2023, although I will refer to earlier events, where necessary, for context.
12. Miss D also says the Council has not properly responded to requests she has made under the Freedom of Information Act.
13. We generally expect complainants to approach the ICO if they have a complaint about data protection or disclosure of information. This is because the ICO is the expert body created by the Government to consider and decide such complaints, and has powers to enforce its decisions, which we do not.
14. The only exception to this is where the ‘information’ complaint is inextricably linked to another point of complaint which does fall into our jurisdiction, and it is not possible to meaningfully investigate one without the other. There is no suggestion that is the case here though, and so I have not investigated this point.

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How I considered this complaint

15. I considered evidence provided by Miss D and the Council as well as relevant law, policy and guidance.
16. I also shared a draft copy of this decision with each party for their comments.

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What I found

Legal background

Statutory nuisances

17. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
18. 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.

19. 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.

20. 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.
21. 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.
22. 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.
23. 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

24. 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 up to seven days, to try to address the problem informally.
25. 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.
26. 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.

Section 82 of the Environmental Protection Act 1990

27. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
28. This process does not involve the council, but it is good practice for councils to tell complainants about their right to take private action.

The Noise Act 1996

29. The Noise Act 1996 introduced a separate noise enforcement power for councils, allowing them to take enforcement action against excessive night-time noise from dwellings or licensed premises.
30. Unlike statutory nuisances, which councils judge on a range of factors, the Noise Act specifies volume limits for noise between the hours of 11pm and 7am. Councils can serve a fixed penalty notice (FPN) on any person responsible for breaching the limits.

Miss D’s complaint

31. The following is a summary of the key events relevant to this complaint. It is not intended to provide a comprehensive history, and does not include everything that happened.
32. In 2020 Miss D contacted the Council to report being disturbed by noise from a ventilation unit at a commercial property near her home. I will refer to the commercial property as ‘the business’ from this point forward.
33. The Council investigated Miss D’s report, and decided the noise from the unit was excessive and represented a statutory nuisance to her. It contacted the business and explained it needed to undertake work to reduce the noise emitted by the fan. The Council says it was satisfied with the work on the fan within seven days, and for this reason did not serve an abatement notice on the business.
34. Miss D was not satisfied the business had properly abated the noise, and continued to make reports of nuisance to the Council. The Council made several site visits in the summers of 2021 and 2022, installing noise monitoring equipment in Miss D’s property and assessing the noise from the business property itself.
35. After one such investigation, the Council said to Miss D in an email “the noise you are experiencing is an issue we can deal with”. The Council continued to work with the business and gained an agreement it would switch the unit off at a certain time each evening. However, Miss D continued to complain about disturbance during the day, and also said the business was not complying with the agreement to switch the unit off at night.
36. In September 2023, the Council wrote to Miss D. The Council said the business had called in an engineer to resolve the problem with the unit not switching off; but it noted Miss D was still reporting noise at night since then, and said it would continue to liaise with the business about this. However, the Council said, having reviewed the noise monitoring evidence, the fan did not present a statutory nuisance during the day, because the noise was not excessive at that time. It also explained Miss D had the right to take action privately in the magistrates’ court under section 82 of the EPA.
37. At some point after this, the Council contacted a neighbouring local authority, to ask it to provide a second opinion about whether the noise amounted to a statutory nuisance. The other local authority agreed to do so, by reviewing the audio recordings the Council held from its noise monitoring, and by arranging a visit to Miss D’s property.
38. In December the Council held a meeting with Miss D, during which it agreed an action plan:

• the Council would continue to work with the other local authority to gain a second opinion;
• the Council would refer the case for mediation between Miss D and the business; and
• the Council would leave the case open for further possible noise monitoring in the spring of 2024, bearing in mind Miss D’s experience that the noise was less of a problem in the colder months.

39. The Council referred the case to a third-party mediation service in January 2024, but the business then declined to take part. Around the same time, the other local authority reviewed the audio recordings. It agreed with the Council the noise amounted to a statutory nuisance during the initial investigation in 2020. The Council says the other local authority then sought to arrange a visit to Miss D, in order to assess the current noise, but she did not take up its offer.
40. In February, at Miss D’s request, the mediation service asked the Council whether it would enter mediation with her. The Council responded in March to say it did not consider this necessary. Miss D emailed the Council again to ask it to confirm whether it was declining mediation, but she says the Council did not respond. In May the mediation service contacted Miss D to say it was closing the referral, having had no engagement from either the business or Council.
41. On 31 May Miss D submitted a formal stage 1 complaint to the Council, to which the Council responded on 12 August. It explained the outcome of its initial investigation in 2020, and said it had addressed Miss D’s concerns about the behaviour of a particular officer in its response to her previous complaint in 2022.
42. The Council said, during its investigation in 2022, it had determined the noise did not amount to a statutory nuisance, but had taken informal action to gain agreement with the business to switch the unit off at night. The Council explained its comment, that the noise was “an issue [it] could deal with”, was because it considered the unit could cause annoyance at night when consider under British Standard (BS) 4142.
43. The Council said it had continued to work with the business to ensure the unit was not active outside the agreed period. This being so, the Council said it considered the business would have a ‘best practicable means’ defence against formal action.
44. The Council summarised the outcome of the meeting in December 2023, and noted Miss D had not taken up the offer of a visit by the other local authority due to the time of year. It asked Miss D whether she would like it to explore this option again. Separately, the Council acknowledged its frequency and standard of communication with Miss D had not always been adequate, and apologised for this.
45. Miss D submitted a stage 2 complaint in September, to which the Council responded a few days later. In her complaint, Miss D listed various points she considered the Council had omitted from its stage 1 response, to which the Council highlighted where it had covered these points in that response. The Council also explained it had never suggested it would engage in mediation with Miss D, and instead had suggested mediation between Miss D and the business.
46. Miss D then referred her complaint to the Ombudsman in December 2024.

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Analysis

47. The Ombudsman’s role is to review the way a council has made its decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or unduly delayed reaching a decision. We call this ‘fault’ and, where we find it, we can consider the impact of the fault, and ask the council in question to address this.
48. However, we do not provide a right of appeal against a council’s decision, nor make decisions on councils’ behalf. If we find a council has acted without fault, then we cannot criticise it, even if a complainant feels strongly its decision is wrong. We do not uphold complaints simply because somebody disagrees with what a council has done.
49. In summary, the Council’s position is that the noise from the industrial unit is not excessive during the day. This is because, while it may be audible from Miss D’s property, it is a normal part of the background noise for the area she lives in. The Council has come to this conclusion following repeated investigations and noise monitoring exercises. While Miss D has raised criticisms of those investigations, they fall outside the period I have investigated, some considerably so, and I therefore I cannot make any comment on them. All I can say here is that the Council is entitled to its view the noise does not represent a statutory nuisance.
50. Conversely, and while maintaining its view it does not amount to a statutory nuisance, the Council has said it considers the noise from the unit to be excessive at night. This is particularly because there does not appear to be any reason for the unit to be in operation at night.
51. I note the Council has worked with the business to address this point, which has included the business fitting a timer to ensure the unit shuts down automatically at the appropriate time. But, in her correspondence with the Ombudsman Miss D says it is still a problem at night. Without being able to make my own judgement about this, it appears possible that whatever the business has done to address the problem has still not worked.
52. I will observe at this point that the Council took the unusual step in this case of referring its investigation for a peer review by the other local authority. It is unclear to me whether the Council asked the other authority to consider the noise during the day, at night, or both. Unfortunately, and whatever its parameters, this review appears to have come to naught, with the Council saying this was because Miss D did not take up the other authority’s offer of a visit.
53. But, taking these points together, in the narrow sense I do not have grounds to criticise the Council for its ongoing view the noise does not amount to a statutory nuisance.
54. I do, however, have two points of criticism here.
55. First, in its response to Miss D’s complaint, the Council discussed its historic comment, that the noise was “an issue [it] could deal with”, and explained it had said this in reference to BS 4142.
56. I find this explanation difficult to follow. BS 4142 describes the method councils should use for assessing noise from industrial equipment. It is not, in itself, an enforcement regime, and does not give councils the power to take action against equipment which produces excessive noise. This is set out explicitly by guidance issued by the Government (Method implementation document (MID) for BS 4142, December 2023), which says:

“You must not use the standard to assess whether sound amounts to a noise nuisance. That is not within the scope of BS 4142.”

57. The MID also explains that BS 4142 is specifically for assessing the impact of noise outside buildings. It is therefore not relevant to a complaint about noise experienced inside a building, as in Miss D’s case.
58. Second, in response to Miss D’s complaint, the Council said it could not take any enforcement action against the business under the statutory nuisance regime, because it believed the business had a ‘best practicable means’ defence.
59. ‘Best practicable means’ (often abbreviated to BPM) provides a potential ground of appeal against an abatement notice. It says, in simple terms, the perpetrator of a statutory nuisance has taken all practical steps available to reduce or mitigate its impact, and that it is therefore not reasonable to require further abatement. If the magistrates’ court is persuaded by a BPM defence, it may then order the notice revoked.
60. However, BPM is strictly a consideration for the magistrates’ court when dealing with an appeal against an abatement notice. It is not a consideration for councils when deciding, at the earlier stage, whether something amounts to a statutory nuisance. This is set out in caselaw:

“First, the local authority has to decide whether there is a statutory nuisance. If it does so decide, it is obliged to issue an abatement notice. There is no relevant discretion. If there is an appeal, or a criminal prosecution, then it is at that second stage that the Magistrates’ Court has to decide whether there is a BPM defence. This distinction between the powers of the local authority on the one hand, and those of the Magistrates’ Court on the other, is of critical importance when considering the primary issue in this appeal. Whether or not the nuisance has been or can be addressed by the use of BPM is not a matter for the local authority: it falls outside their jurisdiction. In law, it is solely a matter for the Magistrates’ Court.” (R (Ball) v Hinckley & Bosworth Council (2024) EWCA Civ 433)

61. The Council is therefore also at fault on this point.
62. I do not consider these faults give rise to an injustice to Miss D. While neither BS 4142, nor the BPM defence, should have been a consideration for the Council in these circumstances, the evidence does not suggest they played any significant role in the Council’s decision the noise did not amount to a statutory nuisance.
63. This being so, I am not persuaded the Council’s decision would have been any different, even if there had been no fault.
64. However, I still consider the Council should ensure officers properly understand the meaning and application of BS 4142, and I make recommendations for service improvements to this effect.
65. Separately, in her complaint to the Ombudsman, Miss D said the Council had “refus[ed] mediation despite promoting it”, and sought an agreement from the Council to engage in mediation with her as part of her desired outcomes from our investigation.
66. Mediation is a tool available to councils dealing with complaints of nuisance and anti-social behaviour, where they have decided the situation does not warrant formal enforcement action. It is, by definition, a voluntary process for both parties to the dispute, in which they aim to settle their differences and reach a mutual agreement to avoid further conflict.
67. I do not see what purpose would be achieved by the Council engaging in mediation with Miss D. The core issue in this matter is the noise Miss D is experiencing, but the Council is not responsible for the noise and cannot agree to reduce or stop it.
68. The Council’s role here is simply to decide whether the noise reaches certain statutory thresholds, and take enforcement action if so. Any dispute Miss D has with the Council about this is a matter for the complaints process, not mediation. I also consider it was clear the Council was suggesting mediation with the business, not with itself. There is no fault in this aspect of Miss D’s complaint.

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Action

69. Within one month of the date of my final decision, the Council has agreed to:

• circulate a copy of the Government guidance on British Standard (BS) 4142 to relevant staff, highlighting the fact is not relevant to a consideration of noise nuisance; and
• circulate guidance to relevant staff explaining they must not consider the existence of a ‘best practicable means’ defence when investigating statutory nuisance, and highlighting the caselaw I have quoted in my decision.

70. The Council should provide us with evidence it has complied with the above actions.

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Decision

71. I find fault which did not cause injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman