Summary: Mr X complained about the Council’s lack of action when he reported noise and dust caused by his neighbour. The Council was not at fault. It investigated the issues but it did not find a statutory nuisance, and it took informal action.

The complaint

1. Mr X complained the Council did not respond properly to his reports of noise and dust caused by his neighbour building an outbuilding. Mr X believes these are a statutory nuisance, and he has had to pay for a solicitor and CCTV.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. Mr X complained to the Ombudsman in August 2018. He first contacted the Council in July 2017, just over 12 months before he complained to the Ombudsman. I have used my discretion to consider events from July 2017. Mr X had good reason not to complain earlier, because he believed the Council might take further action until it closed the case in July 2018.
5. If we are satisfied with a council’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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How I considered this complaint

6. I considered the information Mr X provided.
7. I made enquiries of the Council and considered the comments and documents it provided.
8. I looked at the relevant law and guidance, including the Environmental Protection Act 1990.
9. I wrote to Mr X and the Council with my draft decision and considered their comments.

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What I found

Relevant law, guidance and Council policy

10. Councils must look into complaints about potential statutory nuisances. For a nuisance to count as a 'statutory nuisance' it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises.
• Injure health or be likely to injure health.
11. The process of determining whether something causes a statutory nuisance can be quite subjective. For noise, for example, officers will consider the level of noise, its length, timing and location.
12. If a council decides there is a statutory nuisance, it must serve an abatement notice. Councils can decide to take informal action if a nuisance is not at a level considered severe enough to be a statutory nuisance. They may, for example, write to the person causing the nuisance or suggest mediation.

What happened

13. In 2017 Mr X’s neighbour started building an outbuilding. Mr X contacted the Council in July 2017 to report the neighbour had been working long hours which disturbed him, including starting at 6:30am on one occasion.
14. The Council wrote to the neighbour at the beginning of August to say it had received a complaint. It sent Mr X diary sheets which he returned two weeks later. Mr X noted noise continuing until 10:00pm, and said he had been unable to use his dining room and garden. He said this was partly because of staring and intimidation by the neighbour and their friends.
15. The Council and Mr X tried calling each other at the end of August but could not get hold of each other. The officer carried out a site visit at the beginning of September, but no work was being carried out by Mr X’s neighbour. The officer also visited Mr X to discuss the case.
16. Mr X contacted the Council in mid-September to ask for an update. The building works had stopped for the time being and the Council closed the file as there was no nuisance at that time. It said it could reopen the investigation if this changed.
17. Mr X contacted the Council in April 2018 to say the neighbour had started building works again. He said the works finished as late as 8:20pm on one occasion and continued on a Sunday until 6:00pm.
18. The Council spoke to Mr X. It explained as the neighbour was laying bricks and not using noisy machinery, the law did not restrict the hours they could work. The officer said they could talk to the neighbour and ask them to carry out noisy work within permitted hours, but explained they could not restrict work which was not noisy. The officer sent Mr X diary sheets to complete again, which he returned.
19. The Council visited at the end of April and observed the neighbour carrying out work in the garden. They spoke to the neighbour, who agreed they would finish work by 8:30pm, and finish tidying up by 9:30pm. They also agreed to only use hand tools in the evening.
20. The Council sent Mr X further diary sheets, which he returned. The diary sheets noted noise from the neighbour cutting blocks, as well as slamming doors. Mr X recorded noise occurring all day on weekend days, and on weekday evenings from his return from work until bed time. He noted his neighbour had the odd day off due to the weather. Mr X noted on the diary sheets that when his neighbour was cutting blocks, there was never any dust extraction.
21. The Council wrote to Mr X in mid-May. It explained the diary sheets and other evidence gathered was not enough to amount to a statutory nuisance. It asked
    Mr X to complete further diary sheets.
22. The Council wrote to Mr X at the end of June and explained as the neighbour was carrying out works himself, the outbuilding was taking longer to complete. The officer said the noise investigation was still ongoing, and as Mr X had now also mentioned dust from the site, the Council would also look into this. The officer explained there was not enough evidence to justify serving an abatement notice.
23. The Council carried out two monitoring visits on a Saturday at the end of June. It visited again on the Sunday, and then the next Wednesday evening. On all occasions, the officer heard no noise and saw no dust.
24. The Council wrote to Mr X again at the end of June with further diary sheets. It explained if it heard nothing further from Mr X it would assume the nuisance had stopped and would take no further action. The officer did not hear from Mr X by the end of July, four weeks later. They closed the file and wrote to Mr X. They reiterated in this letter they assumed the nuisance had been resolved, and the Council did not therefore intend to take further action.
25. Mr X complained to the Council. At the end of October it replied, explaining the officer had considered all evidence but there was not enough evidence to issue an abatement notice to his neighbour. It said the environmental protection team had no power to enforce start and finish times on private development unless it caused a statutory nuisance.
26. Mr X explained to me he is concerned about the silica dust from breeze blocks as he has asthma. Mr X says he had to pay for a solicitor and he has fitted CCTV for his own safety due to threats from his neighbour.

Analysis

27. The Council investigated noise and dust from Mr X’s neighbour’s development, but there was not enough evidence to amount to a statutory nuisance. Mr X says the Council should have done more to investigate the dust issue, for example asking for video evidence. The Council could have asked for such evidence, but there is not a requirement for it to have done so. It then did not hear further from Mr X when it sent diary sheets in June 2018.
28. The Council took informal action by discussing the issue with the neighbour and agreeing steps they could take to reduce any impact on Mr X. It then closed the case as there was no statutory nuisance, and no more informal action it felt necessary at the time. The Council took the steps I would expect to investigate and deal informally with the issues. While Mr X does not agree the outcome was satisfactory, in the absence of fault in the process the Council followed I cannot criticise its decision. It is open to Mr X to report further issues with noise and dust to the Council so it can investigate further and take action where necessary.
29. Costs of CCTV and a solicitor were not due to fault by the Council. These related to the behaviour of Mr X’s neighbour. Mr X said he has been unable to use his garden and dining room, in part due to staring and intimidation from his neighbour. Mr X could discuss these issues with the Council’s anti-social behaviour officers if he is still experiencing these problems.

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Final decision

30. I have not found fault in the Council’s actions. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman