Summary: Mrs F complains about the way the Council has taken noise enforcement action against her husband. The Ombudsman has discontinued the investigation.

The complaint

1. Mrs F complains on behalf of her husband, Mr F:
• The Council wrongly granted planning permission to a neighbour in 2015
• About the way the Council has taken noise enforcement action against Mr F’s business
• That an officer issued an abatement notice without proper authority in 2015

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The Ombudsman’s role and powers

2. 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’.
3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. 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)
5. 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
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 spoke to Mrs F about her complaint and considered the information she sent and the Council’s response to her complaint.
9. I gave Mrs F and the Council an opportunity to comment on my draft decision.

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What I found

Noise nuisance

10. The law says councils must take reasonably practical steps to investigate complaints about issues that could be a statutory noise nuisance. For the issue 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 premise
• injure health or be likely to injure health
11. There is no fixed point at which noise becomes a statutory nuisance. Councils will rely on the professional judgment of environmental health officers to gather and assess evidence of noise and decide if there is a statutory nuisance. To do this, officers may ask the person complaining of nuisance to complete and return diary sheets detailing the noise. Officers may also set up recording equipment in the complainant’s home.
12. If an officer decides a statutory nuisance is happening councils must serve an abatement notice. The recipient has a right of appeal to a magistrates’ court.

What happened

13. Mr F runs a business. A neighbour of the business applied for planning permission from the Council to knock down a building and build a new dwelling house. Planning permission was granted in 2015.
14. Mrs F says the new building is closer to their boundary and is too close to a quarry, undermining previous permissions granted to the site.
15. The Council issued a noise abatement notice against Mr F’s business in 2015. Mrs F says this followed numerous complaints of noise nuisance by the neighbour. She says the neighbour has an undue influence on the Council and is acting maliciously. Mrs F says when the environmental health officer visited the site, she made clear she intended to shut the business down and suggested they store vehicles in an alternative location. Mrs F says the officer was not a council employee and therefore not authorised to issue the abatement notice.
16. In 2016 Mr F paid for a noise survey to be done. The results showed that noise at the boundary with the neighbour was below the imposed noise restrictions. The Council therefore withdrew the abatement notice.
17. The Council issued another noise abatement notice in March 2019. Mrs F says this followed the Council providing the neighbour with a with a device to record noise and Mrs F queries the reliability of this.
18. Mrs F complained to the Council in April 2019 about the 2015 planning permission and the environmental health officer. The Council could find no reasons why the application should not have been granted planning permission. It said the officer was acting as a professional contractor for the Council and was therefore authorised to enforce under the Environmental Protection Act 1990.
19. Mr and Mrs F appealed the abatement notice but the appeal was rejected as out of time. Mrs F told me the Council had not provided the right information to them about the process.

My findings

20. The Ombudsman cannot investigate the planning permission or noise abatement notice issued in 2015. This is because these events are too long ago and I can see no reason why Mr and Mrs F could not have complained at the time.
21. Mr and Mrs F have exercised their right of appeal against the 2019 noise abatement notice. This puts it out of the Ombudsman’s jurisdiction, as we cannot investigate matters that have been considered by court.
22. Mrs F says the Council gave them incorrect information about the appeal process, however she has not yet complained to the Council about this. The law says that, before investigating a complaint, the Ombudsman must normally be satisfied the Council knows about the complaint and has had an opportunity to investigate and to reply. It is therefore too soon for us to consider this complaint.

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Final decision

23. I have discontinued my investigation for the reasons set out above.

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Investigator's decision on behalf of the Ombudsman