Summary: We will not investigate this complaint about the Council’s investigation of a noise nuisance complaint. There is not enough evidence of fault to justify an investigation.

The complaint

1. Ms Z complained the Council did not take enforcement action following her reports of noise disturbance from a neighbouring property and did not properly consider the evidence she provided to support her concerns.
2. Ms Z said this caused distress and frustration.
3. Ms Z wants the Council to properly consider the evidence she has provided and take enforcement action.

Back to top

The Ombudsman’s role and powers

4. 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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

Back to top

How I considered this complaint

5. I considered information provided by Ms Z.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Ms Z complained to the Council about noise nuisance from a neighbouring domestic property. The Council asked Ms Z to use specific technology to capture the noise so it could be considered.
8. Ms Z said the specific technology was unsuitable as it needed activation rather than constant recording. Ms Z used different technology to record what she regarded to be noise nuisance and presented it to the Council. The Council said it would not consider evidence gathered using an unauthorised method.
9. 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. Only a qualified Environmental Health Officer can decide if there is a statutory nuisance based on the evidence available. There is no duty to serve an abatement notice if the Council decides there is no statutory nuisance present.
10. These notices carry a right of appeal to the magistrates court and the resident can appeal if they believe the notice was unreasonable or wrongly served. This means the Council would have to have a case which could be reasonably defended at appeal and if there is not sufficient evidence it should not serve a notice.
11. There is not enough evidence of fault in the Council’s decision not to consider evidence presented to it that was gathered using an unauthorised method, given the Council may have to withstand a court appeal where its evidence could be scrutinised.
12. We cannot overrule the Council’s decision on whether to take action. It is not 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.
13. We will not investigate this complaint. 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 a council 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 person disagrees with the decision the council made.

Back to top

Final decision

14. We will not investigate Ms Y’s complaint because there is not enough evidence of fault to justify an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman