Summary: Mrs X complains the Council has failed to act following a breach of an abatement notice for nuisance from light caused by a business close to her home. We will not investigate this complaint as there is not enough evidence of fault in the Council’s actions. Also, Mrs X has an alternative remedy through the courts.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to act against a nearby business for breaching an abatement notice for light nuisance.
2. Mrs X says because of the Council's fault she suffers a loss of enjoyment and stress.

Back to top

The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
4. 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)

Back to top

How I considered this complaint

5. I considered information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
8. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
9. Following Mrs X’s reports of light nuisance, the Council served an abatement notice on the business. She made further reports and the Council investigated whether the abatement notice was being breached. However, the Council’s legal team advised the evidence was not sufficient for successful legal action.
10. The Council asked Mrs X if officers could visit her to witness the light nuisance from inside her home. Mrs X refused.
11. We cannot by law question the merits of a decision made without fault.
12. The Council has confirmed Officers attended, witnessed a statutory noise nuisance, and issued an abatement notice. It has therefore complied with its duty to follow the Government’s guidelines and its legal duty to establish whether there is a statutory nuisance.
13. It sought legal advice as to whether it has enough evidence to take legal action against the business for breaching the abatement notice. The advice is the evidence it has is insufficient. Officers have asked Mrs X for access to her home to gather further evidence. She has refused to allow this, which is her right. The Council has advised Mrs X that it will revisit her if she wishes. It has also advised her of her right to take her own action under section 82 of the Environmental Protection Act.
14. Under section 82 of the Environmental Protection Act 1990, it is open to members of the public to bring their own case to a magistrates’ court and ask it to serve an abatement notice. In such cases, it is for the court, and not the council, to decide if a statutory nuisance exists and requires any action to abate the nuisance. This is not something we can do.
15. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate a matter where the complainant has an alternative remedy available and it is reasonable for the complainant to use that remedy.
16. Having considered the above and the particular circumstances of this case, I consider it would be reasonable for Mrs X to use the alternative remedy available. This would provide a remedy for any potential injustice suffered by Mrs X as her complaint concerns the Council failure to act against the alleged breach of the abatement notice.

Back to top

Final decision

17. We will not investigate Mrs X’s complaint because we are unlikely to find evidence of fault by the Council. Regardless of the Council’s view, Mrs X can also seek her own remedy in court to remove the statutory nuisance.

Back to top

Investigator's decision on behalf of the Ombudsman