The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint, brought by her representative Mr Y, about the Council’s planning actions in 2000 which she says have resulted in the same Council’s officers serving noise abatement notices on her regarding her business premises. We cannot investigate the notices because Ms X has used her appeal rights to the magistrates’ court. We could not reach a different outcome and find the Council’s planning actions in 2000 caused the recent noise nuisance complaints from nearby residents, leading to the abatement notices.
The complaint
Ms X owns a live music venue neighbouring a residential property. She is represented by Mr Y. He complains on behalf of Ms X that in 2000 the Council signed off a planning condition without the required acoustic report or sound insulation work being done to the residential property.
Mr Y says the lack of noise insulation has led to disturbance to residents of the development. They have in turn reported the noise to the Council which has served Ms X with noise abatement notices. Mr Y says this has cost Ms X significant amounts of money and she has had to appeal the notices to avoid committing a criminal offence. Mr Y says Ms X wants the Council to pay for the acoustic survey done to the residential properties and pay for sound insulation to be installed in that development.
The Ombudsman’s role and powers
We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended) 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information from Mr Y, and the Ombudsman’s Assessment Code.
My assessment
The core of Ms X’s complaint is the Council’s decision to serve enforcement notices on her for noise from her premises. Had the Council not served the notices, Ms X would not have raised a complaint. Ms X has used her right of appeal against the notices to the magistrates' court. Where someone has used their formal appeal right, we cannot investigate. The Council’s decisions to serve the notices on a noise they have identified as a statutory nuisance originating from Ms X’s premises are outside our jurisdiction.
I recognise Ms X and Mr Y believe that but for errors by the Council in its planning process in 2000, noise nuisance would not have occurred. They consider the service of the notices is entirely the fault of the Council for not ensuring noise insulation works were done in line with the permission’s relevant condition.
It was for Ms X and her legal representatives to decide the contents of her appeals against the abatement notices. But if Ms X’s appeals used the argument relating to the Council’s 2000 planning process, we cannot consider it. This is because it will have been before the court for its consideration, taking it outside our jurisdiction. An Ombudsman investigation cannot overturn any finding or ruling of the court on this or any other argument contained in the appeals.
Furthermore, even if the 2000 planning matter did not form part of Ms X’s appeal, we could still not make a finding on the issue and reach a different outcome.
We could not find the Council’s planning actions or inactions 22 years ago directly resulted in the noise issues now reported by residents of the neighbouring properties. The residences and Ms X’s premises co-existed for over 20 years, without the sound insulation she believes is the sole cause of the recent nuisances. We could not say the statutory noise issues, leading to the service of the abatement notices, are partly or wholly the result of Council planning actions from 2000.
Final decision
We will not investigate Ms X’s complaint because: we cannot investigate the noise abatement notices because Ms X had and has used her formal appeal, which takes this matter outside our jurisdiction; and if Ms X has put before the court her argument about the impact of the Council’s planning actions in 2000 on the recent noise issues, this would also be outside our jurisdiction; and even if the Council’s planning actions were not put before the court, we could not reach a different outcome by finding they directly resulted in the noise issues leading to the service of abatement notices.
Investigator's decision on behalf of the Ombudsman