Summary: We will not exercise discretion to investigate this complaint about the Council’s failure to take action over noise nuisance from a neighbouring supermarket. This complaint was received outside the normal 12-month period for investigating complaints. There is no evidence to suggest that Mr and Mrs X could not have complained to us sooner.

The complaint

1. Mr and Mrs X complained about the Council’s failure to take action against a neighbouring supermarket which has been operating a noisy unloading operation near their home at unreasonable hours since 2020. They say that they have provided evidence to the Council over four years but it has not taken action to reduce or remove the nuisance.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I considered information provided by the complainant and the Council’s responses over the years.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mr and Mrs X complained to the Council in 2020 about noise and lighting from overnight delivery operations at a neighbouring supermarket site which they say causes sleep deprivation. They complained about the matter in 2020 and the Council told them in 2021 that the matter could not be investigated further due to government restrictions on dealing with such matters under COVID-19 regulations.
6. The Regulations were lifted by the government in late 2022 and Mr and Mrs X submitted their own privately commissioned noise survey in January 2023 which they say proved there was the presence of statutory nuisance. The provisions of the Environmental Protection Act 1990 state that statutory nuisance can only be identified by a council’s own professional environmental health officers. Whilst this report could be used in their own private action under s.80 of the legislation, it was for the Council to make a decision on any public statutory nuisance.
7. Mr and Mrs X say the Council failed to properly consider their evidence and that it has taken no action against the Council since the lifting of government restrictions in 2022.
8. The legislation from which we take our powers also places some restrictions on what we can investigate. One of these restrictions relates to complaints about matters which the complainant was aware of more than 12 months before they brought it to our attention. This restriction applies to this complaint. There is no evidence to suggest that Mr and Mrs X could not have complained to us sooner.
9. The time for receiving complaints is from when someone became aware of the matter they wish to complain about, not when they complained to the Council or it issued its final response. We would expect someone to complain to us within a year, even if they were dissatisfied with the time the complaints procedure was taking.

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Final decision

10. We will not exercise discretion to investigate this complaint about the Council’s failure to take action over noise nuisance from a neighbouring supermarket. This complaint was received outside the normal 12-month period for investigating complaints. There is no evidence to suggest that Mr and Mrs X could not have complained to us sooner.

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Investigator's decision on behalf of the Ombudsman