Summary: Mrs D complained the Council caused delays in investigating and resolving her concerns about a noise nuisance from a neighbouring nursery. We found the Council at fault for causing some delays in progressing Mrs D’s noise complaint, how it communicated with her, and its extended delays in responding to her complaint. The Council agreed to apologise and make payment to acknowledge the injustice this caused her. We found no fault in the methods the Council used to investigate her noise concerns. We cannot therefore criticise the merits of its decisions.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complained about how the Council handled her complaint about noise from a neighbouring nursery. She said it failed to:
• investigate and make appropriate decisions as to the actions needed to address the noise;
• enforce planning requirement and orders that had been placed on the nursery in an efficient and timely manner; and
• properly communicate and resolve her concerns since 2018 when she brought her concerns to the Council’s attention.
2. As a result, Mrs D said she experienced uncertainty and distress. She also said she had time and trouble to pursue her complaint with the Council.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. If we are satisfied with an organisation’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)

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How I considered this complaint

7. As part of my investigation, I have:
• considered Mrs D’s complaint and the Council’s responses;
• discussed the complaint with Mrs D;
• considered the information the Council provided in response to my enquiries; and
• considered the law, guidance and policy relevant to the complaint.
8. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law, guidance and policy

Statutory nuisances

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
10. Typical things which may be a statutory nuisance include noise from premises or vehicles, equipment or machinery in the street.
11. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
12. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
13. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
14. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices

15. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
16. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
17. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Private court action

18. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
19. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the EPA.

What happened

20. Mrs D lives next to a building which is used by a nursery (the Nursery). There is space at the front, side and rear of the Nursery, but only the front was used for play areas.
21. In 2016 the Council granted the Nursery planning permission for an extension of the building and to use the side and rear of the land for play areas for the children. The permission was subject to conditions for an appropriate acoustic screening and a noise abatement plan, which should be in place before the space could be used.
22. In 2018 the Nursery had decided not to complete the extension. It had completed play areas to the side and rear of the building which were different to their initial plans.
23. In summer 2018 Mrs D told the Council the Nursery had completed works and created play areas to the side and rear of the building. However, there were no acoustic screening and no noise management plan in place. As a result, she said she was experiencing unreasonable noise from children and nursery staff using the areas next to her garden.
24. In response the Council told Mrs D it found the best way to address her concerns was for its Environmental Protection team to investigate her concerns. Over the following months, the Council:
• installed noise monitoring equipment, which found the noise levels from the nursery were unacceptable and it impacted Mrs D’s ability to use her garden or have windows open in her home;
• sent letters to the Nursery;
• considered mediation, but found this was not possible due to the lack of expertise of its staff;
• met with the nursery owner to discuss the noise and acoustic barrier, and the steps the Nursery had taken to position its play areas differently; and
• considered a noise report provided by the Nursery.
25. In 2019 the Council refused the Nursery’s application to discharge the planning conditions. It said this was because the Nursery’s noise assessment was not suitable. It also:
• told Mrs D it would warn the Nursery about the noise, and served a notice on it;
• did further noise monitoring visits to the Nursery and Mrs D’s home. The noise it observed ranged from no noise to a potential statutory nuisance. It found the noise generated by the Nursery was a noise nuisance for Mrs D when outdoors or when windows were open; and
• served a noise abatement notice on the Nursery,
26. The Nursery owner spoke with the Council and said it would arrange for the noise screening shortly. It also provided a further noise assessment to the Council.
27. The Council made further visits in the Autumn 2019 and installed noise monitoring equipment at Mrs D’s home again. These did not find an unreasonable noise nuisance. Also, as the Nursery’s outdoor activities were limited during the winter months, no further visits took place.
28. In late 2019 the Council started discussing the requirements of the acoustic barrier with the Nursery and its planning agent.
29. In spring 2020 Mrs D told the Council the noise had started again. The Council agreed to do further formal monitoring of the Nursery, but it found little or no noise at the times it visited.
30. In summer 2020, the Council made a further four visits. It found there was noise, but this was not a statutory nuisance and did therefore not breach the abatement notice.
31. In autumn 2020 Mrs D asked the Council to chase the Nursery about its acoustic barrier and noise management plan. She also asked the Council to do unannounced visits, as she believed the Nursery was limiting the noise and activities when visits were planned.
32. The Council asked the Nursery about the progress of its acoustic barrier and noise plan. It also did unannounced visits, which found levels of noise which were potentially a breach of the abatement notice. So, the Council formally asked the Nursery to respond to its questions under the Police and Criminal Evidence Act 1984 (PACE).
33. In early 2021 the nursery provided the Council with its two noise assessment reports, a noise management plan, and details of its intended acoustic screen. It asked the Council to discharge the planning conditions.
34. In Spring 2021, the Council discharged the Nursery’s planning conditions. Its Decision Notice said it found the Nursery’s proposed plans acceptable as this would limit the number of children in the play area, limit the periods the children could use the area, and the acoustic barrier would be appropriate to reduce the impact of the noise.
35. In summer 2021 the nursery completed its acoustic barrier.

Mrs D’s complaint

36. Mrs D complained to the Council after it had discharged the Nursery’s planning conditions in Spring 2021. She said it had failed to:
• investigate and make appropriate decisions as to the actions needed to address the noise;
• enforce planning requirement and orders that had been placed on the nursery in an efficient and timely manner; and
• properly communicate and resolve her concerns since 2018 when she brought her concerns to the Council’s attention.
37. A month later, after an email from Mrs D, the Council acknowledged her complaint.
38. In June 2021 the Council told Mrs D the Nursery had completed its acoustic barrier and it had put in place its noise management plan.
39. Mrs D was not satisfied with the response. She told the Council it had failed to respond to her complaint about its handling of her concerns since 2018.
40. Over a month later, after an email from Mrs D, the Council acknowledged her request for escalation of her complaint. It apologised for its delay in responding and said this was due to its outstanding work related to COVID-19. It also asked Mrs D to clarify her complaint and what outcome she would like.
41. Mrs D told the Council she believed it had not understood her properly and asked for a meeting in person, which the Council declined due to space and it found a call with Mrs D would be appropriate.
42. In late 2021, Mrs D brought her complaint to the Ombudsman’s attention. We asked the Council to provide its final complaint response before we could consider the complaint.
43. In February 2022 the Council shared its final complaint response with Mrs D. It apologised for the delay in responding and explained why an in-person meeting with her did not take place. It found:
• no breach of planning conditions for the acoustic barrier and noise management plan in 2018 as the development was not completed. It therefore took the view it was more appropriate for its Environmental Protection team to consider Mrs D’s noise concerns;
• there was intermittent noise from the Nursery, which during several visits was found not to be unreasonable, but some its visits had found this caused a noise nuisance and potentially a statutory nuisance;
• its Environmental Protection team had taken a considered approach given the type of noise (children playing). This included installing noise monitoring equipment, inspecting noise during visits, and meeting with Mrs D and the Nursery owner. It had also written letters to the Nursery and served it abatement notices as a result of the noise its officer’s had observed;
• it had considered the steps the Nursery said it would take to reduce the noise including the noise barrier and the noise management plan;
• it had responded reasonably to Mrs D’s concerns, although it accepted its communication with her could have been more consistent;
• it had worked with the Nursery, the building owner, and the planning agent, which made the matter more complex. However, the Nursery had since put in place its Noise Management Plan and the acoustic barrier. It had received no further noise complaints since then, but it recognised it had taken time to bring the matter to a conclusion.
44. The Council offered Mrs D £650 to acknowledge the time and trouble and distress she had experienced as a result of the noise and the Council’s handling of her concerns.

Mrs D was not happy with the Council’s response and its remedy offer. So, she asked the Ombudsman to consider her complaint.

Analysis

45. Mrs D complained about events and noise which happened more than 12 months before she brought them to our attention. These parts of her complaint are therefore late. However, I found it appropriate to exercise my discretion to consider her complaint from Autumn 2018. This is because Mrs D continued to raise her concerns and work with the Council to resolve the noise issues since she first brought the issue to its attention.

Planning conditions

46. Mrs D said the Nursery was in breach of the planning conditions in Autumn 2018 when it had completed works to the external play areas around the Nursery. This was because it had failed to put in place the acoustic barrier and a noise management plan before the children started using these areas.
47. The Council considered the works which the Nursery had completed. It found this was different to what had been approved and was not completed. It therefore decided the best way for it to address Mrs D’s concerns was through its Environmental Protection team investigating the noise concerns.
48. I found this was a decision the Council was entitled to make; I cannot therefore criticise the merits of this decision. In reaching my view, I am conscious:
• Mrs D’s concerns about noise could be effectively addressed through a noise nuisance investigation and the powers available to the Council, if a nuisance was found;
• the Council refused the Nursery’s application in 2019 to discharge the planning conditions, as it found its noise assessment to be insufficient to assess the noise generated; and
• the Council discharged the planning conditions in 2021 when it was satisfied with the Nursery’s noise management plan and the standard of the acoustic screening.

Noise nuisance

49. Between 2018 and Summer 2021 the Council investigated Mrs D’s noise concerns. It found the Nursery created a noise nuisance which impacted Mrs D’s enjoyment of her garden and property when her windows were open. On two occasions it found the level of the noise may have been a statutory nuisance.
50. However, it also found the noise was intermittent and several times no or little noise was observed when it inspected or considered recordings.
51. I have not found faults in the method’s the Council used to assess the noise. This is because it observed the noise generated by the Nursery on several occasions, installed and considered recordings from its noise monitoring equipment and considered the information Mrs D provided.

Was the Council’s actions proportionate and timely?

52. The Council said it had taken a considered approach as the noise was generated by a Nursery with children playing which serves a public need. It found the actions it had taken to be appropriate to address Mrs D’s concerns. These included:
• discussing the noise with Mrs D and the Nursery Owner;
• sending letters to the Nursery regarding the noise, including a warning;
• informal and formal monitoring of the Nursery;
• serving abatement notices when it observed potential statutory nuisances;
• working with the Nursery, the planning agent and the building owner to ensure the noise management plan and acoustic barrier effectively addressed the noise nuisance; and
• discharged the relevant planning conditions when the noise management plan and standard of the acoustic barrier was agreed.
53. The use of the Nursery was lawful and a public need, which requires for children to be able to play outside. The Council therefore had to assess whether the noise the Nursery generated was excessive and causing a statutory nuisance.
54. I am satisfied the Council properly considered the powers available to it to address its and Mrs D’s concerns about the noise nuisance generated by the Nursery. In doing so, it took account of the type of noise and took informal and formal action.
55. While I understand Mrs D wanted the Council to take more formal action against the Nursery. The Council was not satisfied it had enough evidence to prosecute the Nursery for a statutory nuisance and told Mrs D about her option to take private actions against the Nursery in court. This was a view it was entitled to take, and I cannot criticise the merits of its decision.
56. I acknowledge the Council was not at fault for some of the delays which Mrs D experienced since 2018 as these were outside its control. These includes the planning considerations for the first acoustic screen which it found to be insufficient to mitigate the noise, the discharge process of the approved acoustic scree and noise management plan, and the Nursery’s delays to complete the acoustic screen due to supply chain issues. It also continued to work with the Nursery to resolve Mrs D’s noise concerns.
57. However, I found the Council failed to act in a timely manner in some periods since 2018 to address the noise disturbance. This was fault which caused delays in mitigating or resolving Mrs D’s noise concerns. In reaching my view, I found:
• the Council agreed in 2018 the noise generated by the Nursery was impacting Mrs D’s enjoyment of her property and may be a statutory nuisance;
• the Council was aware activities in the play area would require the Nursery to implement a noise management plan and install an acoustic barrier to reduce the noise, before the areas should be in use. However, it took almost three years for this to be in place;
• limited or no action took place in the winter months in 2018 and 2019, which was a missed opportunity to work with the Nursery to put in place the required noise management plan and acoustic screening;
• it was not until Autumn 2020, when Mrs D requested it, the Council did unannounced observations of the noise. This resulted in findings of potential breaches of the abatement notice; and
• the Council agreed it had caused delays in progressing Mrs D’s concerns.

Communication and complaints handling

58. The Council agreed its communication with Mrs D could have been better and it had caused delays. This was fault.
59. I have also considered how the Council handled Mrs D’s complaint about how it had handled her noise concerns since 2018.
60. Mrs D complained to the Council in Spring 2021, and it was not until 10 months later she received the Council’s final complaint response. I acknowledge this was partly delayed as Mrs D wanted an in-person meeting with the Council’s Officer and the Council was unsure what her complaint was about.
61. While the Council was not at fault for refusing an in-person meeting with Mrs D, it had enough information from its communication with Mrs D to respond to her complaint at the time. I therefore found the Council caused delays at each stage of its complaint’s process and it failed to acknowledge Mrs D’s complaint as set out in its policy.

Injustice

62. I have considered the remedy the Council proposed to Mrs D to acknowledge the distress and time and trouble she had as a result of its delay in progressing her noise concerns, poor communication and the excess noise she experienced.
63. While I found this to be well considered, I am not satisfied it is enough to remedy the avoidable injustice it caused her. This is because Mrs D:
• experienced a noise nuisance between Spring and Autumn during a three-year period, which may at times have amounted to a statutory nuisance. I cannot say when the nuisance may have stopped, had the Council not caused delays. However, on balance, I am satisfied this would have reduced the distress and may have limited the noise Mrs D experienced sooner;
• had extensive avoidable time and trouble over almost three years to share her noise concerns with the Council and chase it to investigate and take further action; and
• experienced further unnecessary distress and uncertainty from the Council’s delayed complaints handling.

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Agreed action

64. To remedy the injustice the Council caused to Mrs D, the Council should, within one month of the final decision:
• apologise in writing to Mrs D, and pay her £500 for the avoidable distress and uncertainty its delay in progressing her noise nuisance complaint caused her;
• pay Mrs D £250 for the distress its delayed complaint’s handling caused her; and
• pay Mrs D a further £250 for the time and trouble she had to pursue her complaint and chase the Council to action and respond to her concerns.

In total the Council should therefore pay Mrs D £1,000.

65. Within three months of the final decision the Council should also:
• review its procedure for how it progresses noise nuisance investigations and actions during seasonal periods, in which an alleged nuisance does not occur, to avoid delays and missed opportunities to address the issue with the person, or business, who causes the nuisance;
• remind its Environmental Protection officers to communicate with complainants during key stages of the Council’s noise investigation, including when there are delays or an investigation is taken longer than anticipated;
• remind its staff about the expected timeframes for the Council to acknowledge and respond to the complaints it receives, and to tell complainant if there are delays in the process and when a response will be provided.

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Fault decision

66. There was fault which caused and injustice, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman