Summary: We will not investigate this complaint about how the Council responded to the complainant’s concerns about noise and light nuisance. There is not enough evidence of fault by the Council. Also, the complainant can seek a remedy in court.

The complaint

1. The complainant, I shall call Mrs J, complains the Council has failed to act on her complaints about noise and light nuisance from a private school behind her home.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 seek a remedy in 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)

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How I considered this complaint

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

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My assessment

7. Under the Environmental Protection Act 1990, councils have a duty to investigate complaints that a statutory nuisance exists. If a council decides there is a statutory nuisance, it must act to abate the nuisance. Whether a statutory nuisance exists is a subjective decision taken by qualified environmental health officers.
8. The Council has considered Mrs J’s complaint and environmental health officers visited the site on several occasions. It also installed noise monitoring equipment in her home and those of several of her neighbours. Officers considered the information from the monitoring equipment and visited the site many times. However, they decided there is no statutory nuisance from either the noise or lights. Therefore, there is no formal action it can take. The Council has explained this to Mrs J.
9. We cannot overrule the Council’s decision on whether to take action. It is not our role to say whether the noise or light complained about is a nuisance in law or whether action must be taken to reduce it.
10. Further, Mrs J has a right to seek her own remedy in court regardless of the Council’s decision there is no statutory nuisance. 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, not the council, to decide if a statutory nuisance exists and require any action to abate the nuisance.

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Final decision

11. I will not investigate this complaint. This is because the Council has inspected the site and considered data gathered from noise monitoring equipment before deciding that no statutory nuisance exists for noise or lighting. Therefore, it is unlikely we will find fault in the Council’s actions.
12. Also, Mrs J can ask the court to decide whether statutory nuisances exist.

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Investigator's decision on behalf of the Ombudsman