Summary: There was no fault by the Council in a complaint that it did not act on alleged noise nuisance caused by a neighbour.

The complaint

1. Mr X complains about the Council’s decision not to act on alleged noise nuisance caused by a neighbour.
2. Mr X is worried about the wellbeing of his family and particularly the effect of the noise on his disabled daughters who are unable to sleep due to the noise and disturbance.
3. Mr X wants the Council to contact the neighbour and speak to the them so they desist from creating noise. Mr X also wants an apology or compensation.

Back to top

The Ombudsman’s role and powers

4. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)

Back to top

How I considered this complaint

6. I considered the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and invited their comments on it.

Back to top

What I found

Legislation

7. Councils must investigate complaints about noise that could be a statutory nuisance under the Environmental Protection Act 1990. The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
8. For noise 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 premises;
• Injure health or be likely to injure health.
9. Generally, the statutory nuisance will need to be witnessed by the Environmental Health Officer and he/she will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing, and location may be taken into consideration in deciding whether a nuisance has actually occurred.
10. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
11. It is open to members of the public to bring their own case to the Magistrates Court under section 82 of the Environmental Protection Act 1990 and to ask the court to serve an abatement notice.

Background

12. Mr X recently complained about noise from a neighbouring property to the Council. He had previously complained about noise from the same property in 2017.
13. This time the Council asked Mr X to use a noise app to make recordings of the noise his family experienced. An environmental protection officer then assessed the recordings. The officer concluded the noise was ‘audible’ but the level and frequency did not amount to a statutory nuisance. The officer’s manager also reviewed the recordings and reached the same conclusion that the noise was not sufficient to amount to a statutory nuisance.
14. In responding to Mr X’s complaint, the Council asked Mr X to consider action under section 82 of the Environmental Protection Act if he remains satisfied that a nuisance exists.
15. Mr X is unhappy with the Council’s decision. He describes the noise from various activities at the property including dogs barking, loud parties which last over six hours at a time, barbeques, constant cars and people arriving, music/television noise and door banging/slamming.

Finding

16. The Ombudsman cannot question the merits of a decision on whether a noise constitutes a statutory nuisance unless there is evidence of fault in the way it was reached.
17. In this case, the officers considered evidence from readings from a noise recording app. They reached a professional judgement that there was no noise that amounted to a statutory nuisance. I can see no fault in the way this decision was reached.
18. Mr X has the option of action under section 82 of the Environmental Protection Act but that option does not prevent him from making another complaint about noise to the Council. The Council is statutorily required to investigate a complaint of noise that could be a statutory nuisance. As long as Mr X is not a vexatious complainant, I do not find there is a bar to him complaining about noise again to the Council.

Back to top

Final decision

19. I closed this complaint because I did not find fault by the Council in the matters raised here by Mr X.

Back to top

Investigator's decision on behalf of the Ombudsman