The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council taking enforcement action against the complainant in relation to noise nuisance from extraction equipment. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault in the way the Council has handled the matter.
The complaint
The complainant, whom I refer to as Mr X, says the Council should not have taken enforcement action against him in relation to noise nuisance from extraction equipment at a business premises, particularly after he installed new equipment in accordance with a planning permission.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Ombudsman can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. But 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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) But 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) And we cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
How I considered this complaint
I considered information provided by Mr X and the Council, which included their complaint correspondence and an update on the enforcement case.
I also considered our Assessment Code.
My assessment
The 12-month time restriction, detailed in paragraph 4 above, would apply to any parts of Mr X’s complaint about matters which arose prior to mid-2021. I see no reasons to exercise discretion to consider any concerns relating to such earlier events now.
Furthermore, we have no power to investigate any parts of Mr X’s complaint about the start or conduct of court proceedings.
Finally, whilst I appreciate Mr X is having to spend time and money on responding to the breach of condition notice served in early-2022, there is not enough evidence of fault by the Council to justify the Ombudsman pursuing this part of the complaint further. In reaching this view, I am mindful that: Councils are required to look into complaints about alleged noise nuisance.
It is ultimately the responsibility of the person implementing a planning permission to ensure it complies with any attached conditions.
The Council says it has corresponded with Mr X’s noise consultant and has given guidance on the information it requires.
The Council agreed to delay further enforcement action to allow for further negotiations to take place, and I understand it is currently waiting for Mr X’s noise consultant to submit a noise report for some proposed remedial works.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council has handled the matter.
Investigator's decision on behalf of the Ombudsman