The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Council deciding not to take action against noise from a business operating near her property. There is not enough evidence of fault in the Council’s decision-making process when determining not to take noise enforcement action to justify us investigating. Other matters of planning enforcement, off-site parking, on‑site traffic and vermin are premature and the Council should have the opportunity to investigate and respond to these issues before any investigation by us.
The complaint
Miss X lives near the site of a business, part of which is an open-air yard. She complains the Council has: failed to take enforcement action in response to her reports of noise from the business; not taken action because it has contracts with the business; failed to take enforcement action against the business for operating outside of the hours allowed by the terms of its planning permission.
Miss X says the noise from the site has woken her in the early hours, before 8am and sometimes as early as 6am, causing sleep deprivation and stress. She says the business cannot accommodate all its parking needs resulting in cars parking on local roads. She says large vehicles accessing the site have collided with her property, weakening it. Miss X says the skips have attracted foxes and rats to the area.
Miss X wants the Council to: stop the site opening before 8am; move any skips off the site to reduce the noise of their use; make sure the business parks all vehicles associated with it within its site, or it should move to a different location with enough space to do so.
The Ombudsman’s role and powers
We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law says we cannot normally investigate a complaint unless we are satisfied the organisation 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 organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
How I considered this complaint
I considered information from Miss X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.
My assessment
Councils have a duty to investigate reports of noise. They also have powers to take various actions against someone causing noise nuisances, from no action, through advice, to formal legal action. But there is no duty on councils to use any or all of their powers in all cases. Officers have discretion to decide how they should deal with each noise report they receive.
We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. We cannot replace a council’s view with our or someone else’s opinion. So we consider the processes councils have followed when making their decisions.
In response to Miss X’s noise concerns, the Council asked her to submit a noise diary. Officers considered the times, dates and levels of noise shown in the diary and the sound recordings Miss X made and provided to them. The Council’s officers determined the evidence was not sufficient to show it was unreasonable. Miss X raised concerns about the timing accuracy of the noise recordings, so the Council checked and confirmed the recordings showed the correct times for when each noise started. The Council officers determined the evidence provided would not be able to support a finding of it being a statutory noise nuisance.
The Council investigated the noise reports in line with its investigative duty. The officer considered Miss X’s noise evidence when making their decision not to pursue enforcement. There is not enough evidence of fault in the Council’s decision-making process here to warrant us investigating. We recognise Miss X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
Miss X alleges the Council has not taken action against the business’ noise because it holds contracts with it. The Council’s response indicates its decision not to take action on the basis of noise is because its officers did not find sufficient evidence of a statutory noise nuisance to do so. There is not enough evidence to support Miss X’s allegation for there being any different reason for the Council’s decision to warrant us investigating.
Miss X’s complaints to the Council are about its response to her complaints regarding noise from the site. After the Council’s final reply to her on the noise issue, she has raised additional complaints with us about the same site and its impacts. Miss X considers the Council has failed to take enforcement action against the business for operating outside of the hours allowed by its planning permission. This is a complaint about planning enforcement, which is a separate issue from noise enforcement and involving different officers, laws and guidance. Within Miss X’s complaint to us, she also makes claims of injustice which are unrelated directly to noise nuisance and are mostly about an intensification of use on the site, which is also a planning matter. She says the business cannot accommodate its parking needs so cars park on local roads, that it allows large vehicles to access the site, and uses skips which have attracted vermin. This latter issue may also be a new environmental health issue.
There is no indication the issues of planning enforcement, off-site parking, on-site traffic and vermin formed part of Miss X’s complaint to the Council. We cannot normally investigate a complaint unless we are satisfied the organisation has been told about the complaint and had the opportunity to investigate and reply. Such a complaint is described as premature. We do not consider the Council has had an opportunity to respond to these parts of Miss X’s complaints as made to us.
In line with the law, it would be appropriate for the Council to have the opportunity to investigate and respond to these issues before any Ombudsman investigation. If Miss X wishes to pursue all or some of these premature issues, she should make a fresh complaint about them to the Council first. If she remains dissatisfied with the Council’s new decisions and complaint responses on these matters, she may wish to raise them with us as a new complaint.
Final decision
We will not investigate Miss X’s complaint because: there is not enough evidence of fault in the Council’s decision-making process when determining not to take noise enforcement action to warrant us investigating; and all other issues raised are premature for us to investigate.
Investigator's decision on behalf of the Ombudsman