Summary: We found the Council was not at fault in how it reached its decision there was not statutory nuisance at premises near Mrs X’s home.

The complaint

1. Mrs X complained about the Council’s failure to deal with her reports of nuisance at a commercial property that meant she could not enjoy her home and garden. Mrs X said noise from the property disrupted her sleep. Mrs X wanted an independent investigation of her nuisance reports, for the company to put up an acoustic fence, and an apology from the Council.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)

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How I considered this complaint

4. I:

• considered Mrs X’s written complaint and supporting papers;
• considered the Council’s papers about its investigation and its response to Mrs X’s complaint; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

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What I found

Background

5. Councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things that may be a statutory nuisance include:

• noise from premises or vehicles, equipment, or machinery in the street;
• artificial light from premises; and
• smells from industry, trade, or business premises.

6. 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 premises; and or
• injure health or be likely to injure health.

7. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise monitoring equipment, or carry out site visits. Councils will then assess the evidence gathered taking account of the timing, duration, and intensity of the alleged nuisance. The council’s officers will then use their professional judgement to decide whether a statutory nuisance exists.
8. Councils may also take informal action if the matter complained about is causing a problem but is not a statutory nuisance. For example, councils may suggest the parties try mediation or suggest changes to the activity causing the problem.
9. People also have legal rights to take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded the person is suffering a statutory nuisance, it can order those responsible to take action to stop or limit that nuisance. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their legal right to take action.

What happened

10. Mrs X lives near but not immediately next to land in business use (‘the Site’). Mature trees provided screening between the Site and nearby houses, including Mrs X’s home. In 2021, a large tree was cut down. Mrs X found the tree had acted as a barrier to noise from the Site, which noise increased after its removal. Mrs X also found she could now see from her home and garden, and be seen from, a building on the Site. The building had two security lights and emergency exit lights at the top and bottom of an external staircase.
11. Mrs X said she started reporting problems with the Site to the Council after the tree was cut down. And, in late October 2021, the Council’s Environmental Protection team opened investigations into alleged noise and light pollution from the Site. The Council wrote to tell the business it had received reports of noise and light pollution from the Site. The Council invited the business to provide any information and or comments in response to the reports. And, while having differing views of a conversation, Mrs X and the Council also had telephone contact about the reports. The Council said it would give Mrs X diary sheets so she could record incidents at the Site affecting her and her home. The Council did not send the diary sheets until 9 November when it apologised for failing to do so earlier. The Council also sent Mrs X its factsheet about ‘statutory noise nuisance’.
12. In December 2021, after receiving completed diary sheets from Mrs X and information from the business, the Council visited the Site. The Council then made repeated attempts to contact the business and arrange a meeting, which meeting took place in mid-December. The Council’s records showed it listened to a machine on the Site (‘the Machine’) while in use finding it was “not too loud”. The Council also viewed other equipment on the Site, which it found was not connected to a power source. The Council’s records of the visit referred to the business saying security lights on the Site were not currently in use pending a visit from an electrician. The Council also found the emergency exit light at the top of the external staircase to be “bright” but angled to illuminate the exit.
13. Meanwhile, Mrs X continued to contact the Council, updating it about lights shining into her home and people on the Site smoking and coughing. Mrs X acknowledged the Site security lights were switched off in mid-December 2021. The Council updated Mrs X about its meeting with the business and said it intended to make a further unannounced visit after dark to assess lights on the Site.
14. The Council visited the Site a few days later around 5pm. It again found a “bright” emergency exit light (see paragraph 12), which it did not consider would affect Mrs X. The Council also found one “very bright” security light that would probably be visible from Mrs X’s home. The Council contacted the business and suggested how it might reduce the impact of the ‘very bright’ security light. The business explained work on the security lights was continuing and agreed to update the Council once the work was complete.
15. Mrs X continued to contact the Council about the Site. In January 2022, the Council told Mrs X it was awaiting an update from the business about work to the Site security lights. The Council said it would visit Mrs X’s home if she continued to find light a nuisance after completion of the works. The Council also told Mrs X about the disconnected equipment it had found on the Site, which could not be causing noise. Mrs X responded immediately saying noise from the Site was currently in progress. The Council went to the Site and found “a low humming noise” coming from an extractor vent. The Council did not consider the noise intrusive and emailed Mrs X to tell her it was not at a level to be a statutory nuisance. The Council said it would not therefore further investigate Mrs X’s reports of noise from the Site.
16. The business contacted the Council saying it had switched off the security light nearest Mrs X’s home. The business said the remaining security light was at right angles to Mrs X’s home, movement sensitive, and needed for health and safety. The Council then arranged to visit Mrs X’s home, which visit took place in late January 2022.
17. Mrs X had now put-up blackout curtains at her rear window and a six-foot close board fence had been erected along her and her neighbours’ shared side boundary. Mrs X said light from the Site still came into her room through the gaps around the edges of her curtains. Mrs X also told the Council a bright light on the Site was switched off shortly before it arrived at her home. The Council found a light in use on the Site and visible from Mrs X’s home but not “bright”. The Council and Mrs X also heard a noise, which likely came from the Machine (see paragraph 12) during the visit. Mrs X said she opened a bedroom window and the Council’s records said a window was “wide open” and the Machine noise audible but not a statutory nuisance. The Council then visited the Site where only the one light continued in use.
18. The Council wrote to the business referring to its visit and its understanding that a bright light at the top of the emergency exit had been switched off. The Council suggested the business put a ‘green face cover’ over that emergency light like that in place for the ground level light. The Council said neither security light had been in use but, if they remained, it suggested angling their ‘light faces’ so they were almost parallel with the ground. The Council said it had heard the Machine and, while noise from it was not a statutory nuisance, it asked the business not to use it early in the morning or late at night. The Council also let the business know it had been told about loud music from the Site but had not yet received a formal complaint about it.
19. In early February 2022, the business updated the Council again confirming it had switched off the security light nearest Mrs X’s home. The remaining security light had been ‘cleaned up’ and now worked during darkness and was motion sensitive. The business said the Machine was only used during opening hours and its use would reduce later in the year. The business also said it held few events with music and then staff ensured noise levels were reasonable. The business confirmed the external staircase was in use for access. Staff should not sit on the stairs to smoke but use the appointed ground floor smoking area. The Council replied that it would hold any further visit for a few weeks to see if the changes made by the business resolved matters for Mrs X.
20. About 10 days later, Mrs X contacted the Council saying that ‘nothing had changed’ on the Site. The following day, around 6.30pm, the Council visited the Site. The Council found the security light in use was that closest to Mrs X’s home and had ‘slats’ over its face and was ‘angled down’. The Council found the light level on Site was not bright and would not cause a problem for nearby homes.
21. Around mid-February 2022, the Council contacted the business and said it did not consider lights on the Site presented a problem for nearby residents. The Council also wrote to Mrs X confirming that neither noise from equipment on the Site nor light from the security light nearest her home was a statutory nuisance. The Council said it had told the business about staff smoking on the external staircase, but this was not something it could investigate or enforce against. The Council said it would not further investigate Mrs X’s noise and light pollution reports and gave her information about her legal right to take action for nuisance (see paragraph 9).
22. Mrs X replied saying the Council had wasted almost five months of her life with its ‘whitewash of an investigation’. Mrs X said the Council could not investigate her light concerns using evening visits when the problem arose after midnight when local streetlights were switched off. Mrs X also said the light at the top of the external staircase, the Machine, and other equipment on the Site remained a problem. Mrs X also wrote separately to the Council to make a formal complaint about its Environmental Protection Team’s handling of her case.
23. In early March 2022, the Council responded to Mrs X’s complaint, summarising how it had investigated her concerns about noise and light on the Site. The Council said it had, and would again, raise with the business Mrs X’s reports of people smoking on the external staircase. But smoking outdoors was not a matter for its Environmental Protection Team. The Council also confirmed it had not given the business notice of its January visit to Mrs X’s home. However, a senior Environmental Protection officer had now visited the Site and listened to the equipment in use but found no statutory nuisance. And the Machine, while not working during the senior officer’s visit, worked for short periods intermittently and was therefore unlikely to be a statutory nuisance. The Council also said it was difficult to manage peoples’ behaviour when leaving the Site without identifying whether they were part of the business or visitors. But, as the business held a licence, its conditions could be reviewed if there were problems with loud music and rowdy behaviour. The Council asked Mrs X to confirm if she wanted it to refer her details to its Licensing Department and the police. The Council denied the officers that dealt with Mrs X’s noise and light reports had links to the business and so any conflict of interest. The Council accepted it might not have kept Mrs X updated throughout its investigation but did not uphold the complaint against its Environmental Protection case officer. The Council apologised and signposted Mrs X to the Ombudsman.
24. Mrs X replied, expressing strong disappointment with the complaint response. Mrs X asked the Council to pass her details to its Licensing Department, which it did.

Consideration

Introduction

25. We are not an appeal body and do not reach a view on whether a statutory nuisance exists. Our role is to consider how councils reach their decisions and whether there is evidence of fault in the process. Where we find evidence of fault, we consider if this is likely to have affected the council’s decision and caused the complainant significant injustice.
26. As a publicly funded body we must be careful how we use our limited resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision on whether a council has acted with fault. This means we do not try to answer every question or address each detailed point raised by a complainant about what a council said and did. So, we cannot always respond to complaints in the detail people might want. Here, Mrs X’s complaint raised many points and issues with the Council’s communication and actions when it dealt with her nuisance reports. While I carefully considered all that Mrs X said, this statement does not, and does not need to, address every point raised in the party’s correspondence and complaint. My focus was whether the Council’s statutory nuisance investigation fell below acceptable administrative standards so as to evidence fault in its decision making.

The Council’s statutory nuisance decision making

27. The Council opened its investigation in late October 2021 and, in mid-February 2022, told Mrs X it had found no statutory light or noise nuisance on the Site. I recognise Mrs X likely found these months stressful. However, the Council needed to gather evidence about noise and light on the Site, and then assess it, which takes time.
28. The Council made five visits during its investigation, four to the Site by the Council’s Environmental Protection case officer and one to Mrs X’s home. The visit to Mrs X’s home was made by both the Council’s case officer and another senior Environmental Protection officer. (The senior officer made a further visit to the Site before the Council responded to Mrs X’s complaint.) The Council also communicated with both the business and Mrs X, providing and later considering her diary sheets. The evidence also showed the business engaged with the Council and completed works and made changes to lights on the Site. The Council’s actions were in line with the steps we would reasonably expect councils to take when investigating statutory nuisance reports (see paragraph 7). I did not therefore find fault in how the Council investigated Mrs X’s nuisance reports.
29. The evidence did not show any avoidable delay by the Council between late October 2021 and mid-February 2022. Having gathered information from Mrs X, the business, and during visits to the Site, the Council had to assess it. The evidence showed the Council found light and noise from the Site were, respectively, visible and audible at Mrs X’s home. But it did not consider either the light or noise was a statutory nuisance. This was not a view shared by Mrs X. However, as I saw no evidence of fault in how the Council investigated, I had no grounds to question its resulting decision (see paragraph 2).
30. In responding to Mrs X’s complaint, the Council accepted it had not always kept her informed about its investigation. I agree, for example, the Council did not promptly tell Mrs X noise from the Machine was not a statutory nuisance despite concluding this during the first Site visit. Lack of updates might have been frustrating for Mrs X. However, the evidence showed continuing contact between Mrs X and the Council during the investigation, which did include updates from the Council. I did not therefore find any update omissions caused Mrs X significant injustice or needed any further remedy beyond the general apology given by the Council in its complaint response (see paragraph 23).

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Final decision

31. I completed my investigation finding no fault in how the Council reached its statutory nuisance decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman