Summary: Ms X complained the Council failed to take reasonable steps to investigate her complaint about statutory noise nuisance from a nearby industrial site. The Ombudsman does not find fault with the Council’s decision about statutory noise nuisance.

The complaint

1. Ms X complained the Council failed to take reasonable steps to investigate her complaint about statutory noise nuisance from a nearby industrial site.
2. Ms X says the noise nuisance is damaging her physical and mental health. Ms X wants the Council to issue an abatement notice to limit noise from the site and restrict is hours of operation.

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What I have investigated

3. I have investigated Ms X’s complaints about the Council’s noise nuisance investigation.
4. I have not investigated Ms X’s complaint about the Council’s investigation into the certificate of lawful use for the site. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. 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

8. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Ms X and the Council had opportunity to comment on my draft decision before I reached my final decision.

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What I found

Statutory noise nuisance

10. The Environmental Protection Act 1990 (EPA) places a duty on councils to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other property
• Injure health or be likely to injure health
11. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
12. The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must act to stop it. The Council must issue an abatement notice if it is satisfied that a statutory nuisance exists.
13. If a person breaks an abatement notice they will be guilty of an offence. A person committing an offence is liable to a fine on conviction by a Court.

Council noise nuisance policy and procedure

14. When the Council receives a complaint about noise nuisance, the Council will add the complaint to its database and allocate an investigating officer.
15. The investigating officer will decide the best course of action to take in the first instance. The Council can:
• Take no action if it decides not to pursue a complaint further.
• Take informal action, such as mediation or discussions with the alleged perpetrator.
• Take formal action, such as issuing an abatement notice to stop the noise.
16. If the Council decides to investigate a complaint but finds insufficient evidence to act formally it will take no further action and close the case. The Investigating officer will write to the person confirming the reasons for the outcome.

What happened

Events before to Ms X’s complaint

17. In 1994, the Council granted a certificate of lawful use for the land next to Ms X’s future property as a haulage and transport yard. I will refer to this land as Site A.
18. On 21 December 2017, a developer applied for planning permission to build nine properties on the land next to Site A. I will refer to this land as Site B.
19. On 16 May 2018, the Council planning officer completed their report on the planning application for Site B. The Council planning officer recommended approval of the planning permission and confirmed the development was located directly next to an industrial site used as a haulage and transport yard. The Council planning officer noted that this would have “some impact on the living conditions of future occupiers” but would not be excessively harmful. The Council granted planning permission for the development of Site B.
20. The owner of Site A applied to the Council for a certificate of lawful development for the existing use of Site A on 4 November 2019. The owner of Site said Site A was used as a depot for parking and ancillary maintenance of commercial vehicles. The owner of Site A said they had used Site A for this purpose for more than 10 years.
21. The Council considered Site A’s application for a certificate of lawful use and granted this on 15 July 2020 backdated to 23 October 2019. The Council decided to grant this application because:
• Six people gave sworn statutory declarations confirming the land had been used for this purpose more than 10 years.
• Neither the parish council or the owner of the current residential property bordering Site A gave any contradictory comments.
• Aerial photographs of the site from 2004, 2007, 2010 and 2018 all showed large amounts of commercial vehicles on the site.
22. Site B finished construction of some houses on Site B by the end of summer 2020. In January 2021 Ms X bought her house on Site B.

Events since Ms X’s complaint

23. On 31 January 2021, Ms X complained to the Council about noise from Site A. The Council logged Ms X’s complaint and made enquiries of the businesses operating at Site A.
24. The Council sought informal legal counsel about noise nuisance caused by Site A to decide how it should approach an investigation. The legal counsel advised the Council needed to focus on any actionable noise nuisance. The legal counsel said the Council could not act if the operations of Site A are reasonable, lawful and to the same extent, in terms of noise, before Site B turned residential. The legal counsel told the Council it could still act if Site A was operating unlawfully, manifestly unreasonably or had intensified its noise creating an unreasonable impact on Site B.
25. The Council completed a site visit and wrote to Ms X on 8 February 2021 to advise it would need to complete a comprehensive search for planning conditions relating to the site. The Council said it would need to consider if any activities were unreasonable on site. The Council directed Ms X to use of its Noise App to record the noise generated by the site. The Council advised it was not conducting visits into people’s properties because of the current Covid-19 pandemic restrictions in place.
26. The Council visited Site A and sought advice from its planning department. The Council’s planning department confirmed Site A had an established use of the site as housing and maintenance of commercial vehicles. The Council remained in contact with both Ms X and Site A from March 2021 to the end of May 2021. Ms X provided many recordings and videos of noise nuisance from Site A.
27. Ms X sought noise monitoring equipment from the Council on 30 May 2021. The Council advised Ms X it would install noise monitoring equipment once it received return of the noise diary sheets from Ms X, and other residents of Site B.
28. In June and July 2021, six of the residents from Site B, including Ms X, gave noise nuisance diary sheets to the Council about the noise from Site A.
29. The Council grouped the noise nuisance diary sheets together under one complaint and responded to the residents on 15 July 2021. The Council said it can only tackle noise nuisance that was either unnecessary or preventable and could not address noise caused by the established use of the site. The Council said it would be looking to install noise recording equipment shortly to analyse the noise from the site.
30. Ms X raised a formal complaint with the Council, with other residents from Site B, on 15 July 2021 about the Council’s noise nuisance investigation. Ms X continued to provide the Council with evidence of noise nuisance from Site A.
31. The Council provided Ms X with an update on 23 July 2021. The Council said its investigation into the noise nuisance was continuing and it was awaiting a breakdown of activity from the site to compare with the noise nuisance diary sheets. The Council also told Ms X it was seeking further legal counsel about the noise nuisance.
32. The Council sought formal legal counsel on this matter and installed noise monitoring equipment on 28 July 2021.
33. The Council issued a Stage 1 complaint response to the residents on 30 July 2021. The Council said it had obtained legal advice already which told it to focus on avoidable noise rather than pre-existing site noise from normal operations of the site. The Council confirmed it had arranged to install noise monitoring equipment into a property on the residential development as part of its investigation. Ms X responded to the Council to advise she wished to continue to Stage 2 of the Council’s complaint procedure on the same date.
34. The Council removed the noise monitoring equipment on 4 August 2021 and installed further noise monitoring equipment in a different property on the Site B on 10 August 2021.
35. The Council received its legal counsel which told the Council that it cannot ignore a noise nuisance because a person “has come to it” or that Site A pre-existed Site B. But, the legal counsel did outline the Council must consider the “character of the area” when deciding if a statutory noise nuisance existed. The legal counsel presented a guide from the case Coventry v Lawrence in which the following was set out:

“…, where a claimant builds on, or changes the use of, her land. I would suggest that it may well be wrong to hold that a defendant’s pre-existing activity gives rise to a nuisance provided that:

i) it can only be said to be a nuisance because it affects the senses of those on the claimant’s land,

ii) it was not a nuisance before the building or change of use of the claimant’s land,

iii) it is and has been, a reasonable and otherwise lawful use of the defendant’s land,

iv) it is carried out in a reasonable way, and

v) it causes no greater nuisance than when the claimant first carried out the building or changed the use.”

36. The legal counsel advised the first three and fifth factors were satisfied in this case, but the Council needed to focus on the fourth.
37. The Council removed the noise monitoring equipment from the second property before issuing its Stage 2 complaint response on 19 August 2021. The Council said the legal counsel it obtained told it to concentrate on the preventable noise which is what it was doing. The Council directed Ms X to the Local Government and Social Care Ombudsman (the Ombudsman). The Council said it would address Ms X’s concerns about the certificate of lawful use as a separate matter through its planning department.
38. Ms X disputed the Council’s Stage 2 complaint response on 20 August 2021. Ms X disputed the Council offices took a reasonable and proportionate response to the noise nuisance reports. Ms X also complained the Council failed to address the serious impact this matter was having on the mental health of the residents. Ms X said the change of use of the site was not covered by the certificate of lawful use.
39. Ms X complained to the Council on 21 August 2021 about live bands playing at the industrial site. The Council sent out of hours contractors to the site. The out of hours contractors reported the music was from a residential property on the site and the music was not loud enough to form a statutory noise nuisance. The contractors said the music would be turned off by 10pm.
40. The Council installed two CCTV cameras on Site A to enable it to oversee the activities on the site at the start of September 2021.
41. The Council also completed its review of the noise recordings from the noise recording equipment it installed into the two residential properties. The Council decided that:
• The engine idling was not a statutory noise nuisance because this is expected from an industrial site such as Site A. The noise recordings show the site to be operating as expected.
• The noise recordings did not capture any machinery left running when not in use. The recordings demonstrate use of power tools and air compressors which is activity expected from a site like Site A.
• There were occasions of raised voices or shouting from Site A but the recordings captured do not demonstrate prolonged shouting or raised voices at night. Most voice recordings were at a reasonable level.
• No music was recorded on either sets of recordings at a volume that could be considered a statutory noise nuisance.
• No further action was needed for statutory noise nuisance but a further investigation needed to be completed for clarification of the activities under the certificate of lawful use of Site A.
42. The Council wrote to the residents of Site B on 21 September 2021. The Council said it did not consider enforcement action was appropriate based on the evidence captured but it needed to complete further investigations. The Council also confirmed it had installed CCTV cameras to oversee the site and asked the residents to provide further logs so it could consider these in line with the CCTV footage.
43. On 16 October 2021, the Council installed a third CCTV camera on the site and installed signs warning site tenants to restrict the level of music from all vehicles.
44. On 29 October 2021, Ms X reported loud music from the site from a vehicle. The Council checked CCTV footage against this incident which supported the loud music.
45. The Council removed all three CCTV cameras on 5 November 2021 and closed its noise nuisance investigation on 13 November 2021. The Council wrote to the residents to advise it believed Site A to be operating reasonably within their certificate of lawful use and it had found no evidence of statutory noise nuisance in relation to the operations of the site. However, it had found evidence of loud music playing from the site and confirmed it would serve a Community Protection Warning on the site about the music.
46. On 15 November 2021, the Council issued a Community Protection Warning onto the owners of Site A and the owner of the vehicle recorded to be playing loud music.
47. The Council continued its investigation into the certificate of lawful use. This is ongoing to the date of this decision statement.

Analysis

48. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define the law.
49. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decisions about statutory noise nuisance. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.

Noise nuisance investigation

50. When the Council receives a complaint about noise nuisance, it has a duty to investigate the complaint. The Council’s policy says the investigating officer allocated to the case will decide the appropriate course of action.
51. Following Ms X’s initial contact with the Council, it advised her it would investigate the noise from the site to determine if there was unreasonable noise from the site.
52. The Council took appropriate steps to seek legal counsel in this matter. The Council also took reasonable steps to direct Ms X to the use of the Noise App given the current Covid-19 pandemic restrictions prevented it from attending in person.
53. The Council started informal action by entering into discussions with Ms X and Site A from 31 January 2021 until 30 May 2021. The Council directed Ms X to use its noise recording app but told Ms X it could not install noise nuisance equipment because of the Covid-19 pandemic restrictions. Given the limitations placed on the Council by the Covid-19 pandemic restrictions, I consider the Council has taken suitable action and do not find fault.
54. On 17 May 2021, the Government lifted the Covid-19 pandemic restrictions preventing indoor mixing. Following Ms X’s request for noise monitoring equipment, the Council gave her and other residents diary sheets to complete. When Ms X returned the diary sheets to the Council, with other residents, in June and July 2021, the Council agreed to install noise monitoring equipment into properties on Site B to investigate the noise further.
55. The Council took suitable steps to investigate Ms X’s concerns about noise nuisance through review of the diary sheets and installation of noise monitoring equipment in August 2021. I do not find fault with how the Council handled its investigation from the start of June 2021.
56. The Council installed two sets of noise monitoring equipment in August 2021 to capture noise from Site A. The Council reviewed the noises recorded by the noise monitoring equipment in September 2021 and completed an analysis of the noise recordings.
57. The Council’s review of the noise recordings determined that it could find no statutory noise nuisance from Site A. But also found it would need to complete a further investigation into the certificate of lawful use for the site.
58. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])
59. The Council has presented the Ombudsman with its review of the noise recordings. It is the Council’s role, in line with the Environmental Protection Act 1990 to make a judgement about what constitutes a statutory noise nuisance. The Council considered both preventable and operational noise as part of its noise nuisance investigation. The Council considered noises caused by music, shouting, machinery and engines idling. The Council officer’s analysis of the noise recordings presented in this case is not something the Ombudsman would consider unreasonable. As such, the Ombudsman cannot find fault with the Council’s decision to find no statutory noise nuisance.
60. The Council followed its process and wrote to Ms X following its review of the noise recordings to explain its rationale about finding no statutory noise nuisance.
61. While the Council found no statutory noise nuisance from the noise recordings, the Council decided to complete further investigation. The Council did this by installing CCTV cameras onto Site A and asking the residents of Site B to provide further logs of noise nuisances. The Council’s decision to take on further investigation resulted in it finding a statutory noise nuisance by a site vehicle playing music. The Council did not find any other statutory noise nuisance from this further investigation.
62. The Council followed its policy, and met its duty under the Environmental Protection Act 1990, by taking formal action against Site A, through issuing a Community Protection Warning when it found a statutory noise nuisance. The Council wrote to the residents of Site B to advise of its decision to issue this warning.
63. The Council also followed its policy by writing to the residents to advise it was closing down its investigation into other noise nuisance since it could not find sufficient evidence to take formal action. The Council has followed its policy and I do not find fault.

Live music incident

64. Ms X complained to the Council about a noise nuisance incident on 21 August 2021 about live bands playing from Site A.
65. The Council investigated this noise nuisance incident by sending contractors round to witness the noise nuisance. The Council found this was not coming from the businesses on Site A but a residential property on Site A. The Council contractors also noted the volume of the music did not constitute a statutory noise nuisance.
66. The Council took suitable steps to investigate the noise nuisance and the contractors found no statutory noise nuisance existed. Since the Council took suitable steps to address this incident I cannot find fault.
67. The Council also discounted this incident from its ongoing investigation of Site A. The Council did this because the noise nuisance was not coming from the business site but a residential property. The Council is correct to decide this is a separate matter. Since there have been no repeat events the Council has not taken further action. The Council has acted appropriately to address this incident and I do not find fault.

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Final decision

68. I have completed my investigation as there was no fault by the Council.

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Parts of the complaint that I did not investigate

69. I did not investigate Ms X’s complaint about the Council’s investigation into the certificate of lawful use of the site. This is because the Council has an ongoing investigation into this issue.
70. The Ombudsman must allow the Council opportunity to address a complaint before it can investigate a matter. Ms X raised the issue or certificate of lawful use of the site in August 2021 and the Council raised a separate investigation to address this matter. This investigation is ongoing.
71. The Council continued to address the noise nuisance complaint and provided a Stage 2 complaint response about this matter, enabling Ms X to approach the Ombudsman with her complaint.
72. While there is some cross-over between the noise nuisance and certificate of lawful use, which I have addressed, the Council’s main investigation into the certificate of lawful use is yet unfinished. The Ombudsman cannot look to pre-empt the Council’s findings.
73. Since I have not addressed this aspect of Ms X’s complaint, she will retain her right to approach the Ombudsman about the certificate of lawful use investigation following the Council’s conclusion of this matter.

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Investigator's decision on behalf of the Ombudsman