Summary: Mrs X complained the Council failed to act on continued noise nuisance from a nearby sports facility after it commissioned an acoustic barrier to reduce the noise. Mrs X said the noise was alarming and prevented her from enjoying the use of her home and garden. We have found no fault by the Council.

The complaint

1. The complainant, Mrs X, complains the Council has failed to act on continued noise nuisance from a nearby sports facility after it commissioned an acoustic barrier to reduce the noise. Mrs X says the noise remains unacceptable, despite the Council’s investigation. Mrs X says the noise is alarming and prevents her from enjoying the use of her home and garden. Mrs X would like the Council to acknowledge their decision is incorrect and limit the use of the pitch during evenings and weekends.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I read the papers provided by Mrs X and the notes of her telephone conversation with a colleague. I have also considered information from the Council. I have explained my draft decision to Mrs X and the Council and provided an opportunity for comment.

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What I found

Background and legislation

Statutory nuisances

6. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Activities a council might decide are a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.

7. 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 property; and/or
• injure health or be likely to injure health.

8. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
9. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
10. The law says that a potential nuisance must be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the complainant because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
11. 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.

Section 82 of the Environmental Protection Act 1990

12. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to tell complainants about their right to take private action.

Relevant site history

13. A previous investigation by the Council had established noise from the use of an artificial football pitch at a Council-owned leisure centre constituted a statutory nuisance. The Council commissioned suitably qualified noise consultants and implemented the highest level of recommended mitigation which was an acoustic barrier. These events have not formed part of the Ombudsman’s investigation and I have included them by way of background only.

Key events

14. The following is a summary of key events. It does not include everything that happened.
15. The Council has confirmed the acoustic barrier installation was completed in late October 2022. The Council received a report in early November from a resident to say the acoustic barrier had not reduced noise to an acceptable level.
16. The Council sought an inspection of the barrier to ensure it had been built to the agreed specification and in accordance with the relevant planning approval. The Council received this confirmation in mid-November and emailed the resident with this information. The Council also asked the resident for feedback on noise from matches held on 12 and 13 November. The Council did not receive any reports of noise for those dates.
17. Another resident emailed the Council in early December to say the barrier was relatively effective for low pitch and low volume noise but had found no discernible difference for the noise from shouting at training sessions and matches although it appeared to echo more.
18. An environmental health officer (EHO) witnessed the noise from inside two properties including Mrs X’s property during a football match in early December. The officer noted the noise was barely audible inside the properties and only became apparent when doors or windows were opened. The noise was audible with doors open and in the rear garden. The officer took a noise reading of 55dB using a handheld device from the bottom of Mrs X’s garden and noted it was necessary to raise voices when talking in the garden.
19. The Council considered the continued reports of noise and the outcome from the above visit in early January 2023. The Council decided to recommission the noise consultants to carry out a validation exercise to check the noise levels were compliant with the original noise report. This exercise was to include recommendations if further mitigation was required to achieve compliance and whether any such mitigation was feasible to implement taking into account Best Practicable Means (BPM). In this context, BPM is a defence that is available against statutory nuisance actions.
20. The Council emailed Mrs X and other residents about this course of action and asked them to complete diary sheets so the impact of the reported noise could be reassessed with the noise barrier in place. The Council received completed diary sheets in January and February.
21. The consultants carried out a noise assessment towards the end of February. The Council sought the validation report from the consultants during March and April. A draft was provided to the Council in mid-April.
22. The EHO reviewed the validation report and noted there had been a 6 decibel (dB) and 4dB attenuation at the two properties respectively. The new average weighted sound level (LAeqT) had been measured at both properties as 51dB (with World Health Organisation (WHO) guidelines for outside noise being 50dB). However, it was noted the measurements were taken from the end of the gardens where recorded levels would be at their highest and not necessary representative of what residents would experience further up their garden including on patios and when using gardens day to day. It was noted the original noise impact assessment had predicted the barrier would reduce the noise to 49dB and 50dB at the respective properties. It was noted that 1dB was negligible to the human ear and the Council would still be able to demonstrate BPM was being used. It was also noted the validation report concluded that when background noise levels were taken into account, the noise levels were compliant and not unreasonable.
23. The Council considered the noise consultant’s validation report, the diary sheet entries completed by residents since the building of the acoustic barrier, the noise assessment it had completed in December 2022 and its own legal advice. The Council decided that the match noise no longer amounted to a statutory nuisance inside residents’ properties with doors and windows closed. The Council also highlighted the findings of the noise barrier validation assessment which found the levels set out in the relevant noise report were being met. The assessment stated:

“The assessment findings indicate that the specific noise contributions from the football match are 49 dB and 50 dB at locations LT1 and LT2 respectively. As such, the contribution of the noise from the football match is 1 dB below or equal to the criterion set out in Sport England’s Artificial Pitch (AGP) Acoustics design guidance note.

Consequently, the installation of the 4m high acoustic barrier along the northern permitter of the football pitch was found to, on the occasion of the attended survey, have successfully mitigated noise levels to an acceptable level arising from football matches being played on the AGP.”

24. The Council decided it was not able to take further action as all avenues had been exhausted and feedback from the consultants at the end of May confirmed no further mitigation was practicable. The consultants stated:

‘Unfortunately, there are no further practicable measures we can suggest that are likely to mitigate the noise at the complainants’ properties with the existing site constraints.

As recommended in our first report, the installed barrier would be, and has subsequently been validated to be, the most effective and practicable measure to ensure the noise levels from the AGP satisfy the guideline noise limits.

Following the installation of the barrier, the additional mitigation solutions we initially recommended would either not add any further mitigation, or potentially reduce the effectiveness of the barrier (i.e. moving the technical area to the southern perimeter of the AGP would mean the barrier would offer less screening than where it is currently located directly adjacent to the barrier).

Any further mitigation would be impracticable, for example enforcing noise management restrictions on the football matches (i.e. enforcing no shouting and/or swearing), or fully enclosing the AGP.’

25. The Council sought a redacted version of the report to share with residents and chased this during May and June. The Council subsequently shared the draft version with residents in response to a Freedom of Information request.
26. The Council received a final redacted copy of the report in early July and provided a copy to residents. The Council also confirmed the outcome of its investigation and that it had closed the investigation.
27. The Council explained to residents that it had not determined a statutory nuisance existed following the installation of the acoustic fence but had commissioned noise consultants to assess the effectiveness of the mitigation measure. This action had confirmed the installed barrier was the most effective and practicable measure to ensure the noise levels from the football pitch satisfied WHO suggested sound levels. The Council further explained there were no further practicable measures that could be implemented to mitigate the noise with the existing site constraints. It was considered that any additional solutions would either not add any further mitigation, could potentially reduce the effectiveness of the barrier or would be impracticable. The Council confirmed it had taken all possible and reasonable steps to mitigate the noise and ensure BPM had been used and as a result would not be taking any further action.

My consideration

28. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
29. In making its decision, the Council took account of the relevant guidance, evidence from its own site visit, information from the noise consultants it had commissioned, its own legal advice and information from residents. Based on the information provided, I am satisfied the Council followed the appropriate procedures when making this decision and I cannot therefore criticise it.
30. I am aware Mrs X has disputed some of the methodology used in the noise consultant’s report. However, the Council is entitled to rely on information provided by suitably qualified professionals.
31. The Council has also followed good practice in advising residents of their private right of action under section 82 of the Environmental Protection Act 1990.

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Final decision

32. I have completed my investigation as I have found no evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman