Summary: We have completed our investigation into how the Council dealt with Mr X’s complaint about a statutory nuisance from a nearby ventilation system. This is because we find no fault with the way the Council made its decisions.

The complaint

1. Mr X complained the Council failed to take action about a statutory nuisance from a nearby restaurant’s ventilation system.
2. Mr X said the ventilation system is loud, it vibrates, and it smells, so he cannot open his windows. He said it causes headaches and means he cannot use his bedroom.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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What I have and have not investigated

Planning breach

8. Part of Mr X’s complaint is that the Council said a planning officer would visit the site to investigate if a planning breach had occurred. He does not believe this has happened. Also, Mr X complained that the ventilation system is a breach of planning law.
9. The Council’s complaint response addressed the part of Mr X’s complaint about how the Council handled his report of a statutory nuisance. I have investigated the Council’s assessment.
10. However, there is an ongoing planning enforcement investigation about the ventilation system. Because of this, the Council did not respond to this part of Mr X’s complaint.
11. As I have said above, the law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply.
12. In this case, the Council had not completed its planning enforcement investigation when it responded to Mr X’s complaint. I therefore find the Council has not had an opportunity to investigate and reply to this part of Mr X’s complaint.
13. I consider it is reasonable to give the Council an opportunity to investigate and reply to this part of Mr X’s complaint, once it has completed its planning enforcement investigation.
14. For this reason, I have not investigated this part of Mr X’s complaint.

Vibration

15. Part of Mr X’s complaint is that the Council refuses to investigate possible damage that vibration is causing to his property.
16. The law says we cannot normally investigate a complaint when someone could take the matter to court.
17. Damage caused to properties is a private civil matter. I find it is reasonable to expect Mr X to take this complaint to court.
18. For this reason, I have not investigated this part of Mr X’s complaint.

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How I considered this complaint

19. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
20. I considered the relevant legislation, statutory guidance, and policies, set out below.

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What I found

What should have happened

21. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.

The Council’s policy and information from its website

27. The Council’s website says when it investigates potential statutory nuisances, it will speak with the person causing the noise. It says the Council may decide that the noise being complained about does not meet the legal criteria for formal enforcement. It says it will let the complainant know if this is the case.
28. The website says in most cases a complainant will be asked to complete a nuisance diary for a period of at least two weeks before the Council starts an investigation. It says it may ask the complainant to complete the nuisance diary throughout its investigation.
29. The website says the Council may need to install noise monitoring equipment. This equipment records noise that occurs during the evening or at night, or only at weekends.
30. The policy says:

“Where the time of the nuisance is predictable the Investigating Officer should attempt to witness the disturbance where possible, out of normal working hours, if necessary, up to a maximum of three visits (providing visits have been undertaken at representative times).”

What happened

31. Mr X lives near a restaurant. The restaurant has a ventilation system near Mr X’s home.
32. Mr X complained to the Council that the ventilation system was noisy, smelled, and vibrated. He said it affected his enjoyment of his home.
33. The Council’s environmental health team said it would investigate whether there was a statutory nuisance. It said part of Mr X’s complaint was to do with planning, and its planning enforcement team was investigating that.
34. The Council sent Mr X diary sheets to fill in. It told Mr X that if his diary sheets suggested there was a statutory nuisance it would look to install a noise monitor or visit to witness the issues. The Council told Mr X he could take private legal action at the magistrates court about the noise.
35. The Council spoke to the restaurant about the complaint. The Council visited the site five times, when the restaurant was open.
36. The Council decided there was no statutory nuisance. It told Mr X its decision. Mr X complained.
37. The Council said it was more appropriate to visit the site, rather than install noise monitors. This was because a noise monitor would not capture odour or vibration. The Council said it visited over and above the amount set out in its policy. It said officers visited at representative times, based on Mr X’s diary sheets. It said according to his diary sheets, the nuisance should have been present during the times of those visits.
38. The Council said evidence from other people, who do not live there, is not sufficient to prove a statutory nuisance. It said the planning enforcement investigation was ongoing.
39. Mr X then complained to the Ombudsman.

Analysis

Site visits

40. Mr X complained the Council visited when the ventilation system was not in use so there was no noise. He said the Council used this to prove there was no nuisance.
41. Mr X had told the Council that the noise was all day, every day. The Council visited five times. It visited when the restaurant was open at times when, according to Mr X’s diary sheets, the nuisance should have been present. Officers did not witness a statutory nuisance.
42. As I have said above, the Council’s policy says that officers should attempt to witness the nuisance by visiting up to a maximum of three visits, providing these visits are at representative times.
43. I find the Council went above and beyond because officers visited five times, not three. The Council did not need to visit five times; it could have visited three times. It decided not to. This is evidence of good practice.
44. The Council used Mr X’s diary sheets, even though he said the nuisance was all day, every day, to make sure it visited at times when a nuisance could be witnessed. This is in line with the Council’s policy which says it should visit at representative times.
45. I find the Council investigated Mr X’s allegation of a statutory nuisance in line with its policy.
46. I have considered the steps the Council took to consider the issue, and the information it took into account when deciding there was no statutory nuisance. There is no fault in how the Council made its decision, and I therefore cannot question whether that decision was right or wrong.

Noise monitor

47. Mr X complained the Council refused to install a noise monitor.
48. The Council told Mr X it would look to install a noise monitor or visit to witness the issues reported. The Council visited the site. It did this for several reasons, including that a noise monitor would not capture any odour or vibration.
49. I find the Council did what it said it would do. The Council did not say it would install a noise monitor. Nor would I expect it to install one, given the information Mr X provided.
50. Also, I note that Mr X told the Council a noise monitor would be pointless because the ventilation system could easily be heard from a distance.
51. I find no fault with the Council for deciding not to install a noise monitor.

Third party information

52. Mr X complained the Council refused to speak to anyone else about the noise. He said other residents who live nearby can hear the noise. He said he thought the Council would ask other residents to see if the noise was a nuisance to them as well.
53. The Council told Mr X that evidence from third-party witnesses who do not live there is not sufficient to prove a statutory nuisance. I agree.
54. It is for the Council to witness the alleged nuisance and make a decision on whether that constitutes a statutory nuisance. It does not add any weight to a complainant’s case if people who do not live in the complainant’s home have also witnessed the alleged nuisance and the Council speaks to them about it.
55. I find no fault with the Council’s investigation of the alleged nuisance.

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Decision

56. I find fault no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman