Summary: We will not investigate this complaint about a delay by the Council investigating a noise complaint and taking action to address this. This is because the Council is proactively investigating whether the noise amounts to a nuisance. Though the Council accepts there was an initial delay in responding to the complainant’s noise complaint, there is insufficient evidence he has suffered a significant injustice to warrant investigation.

The complaint

1. The complainant (Mr W) complains the Council is failing to deal with his noise complaint in relation to his neighbour’s dog barking. He says the Council has delayed more than a month in responding to his complaint and has failed to respond to his concerns in full.
2. In summary, Mr W says the failure to deal with the problem is causing him significant stress and anxiety. As a desired outcome, he wants the Council to apologise and provide compensation.

Back to top

The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating.
• any fault has not caused injustice to the person who complained.
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

4. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Section 79 of the Environmental Protection Act 1990 (the Act) creates a duty on councils to investigate and, where identified, take action to address ‘statutory nuisances’. Under the Act, a statutory nuisance is one which:

• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and/or;
• injures health or is likely to injure health.

6. The Council has a legal duty to investigate the existence of a statutory nuisance and the evidence shows it is complying with that duty. The Council has considered Mr W’s request for an investigation and has asked for diary records to be completed so it can assess the scale of the issue being reported. It has also installed noise monitoring equipment with a view to issuing a community protection notice where it considers a nuisance exists. These are reasonable steps we expect councils to take to comply with its duty under s.79 of the Act.
7. The Council accepts there was an initial delay in responding to Mr W’s request for an investigation which I consider was fault. However, I do not accept on the evidence available to me that Mr W has suffered serious loss, harm or distress by reason of the fault identified. To say he had would be to assume the problem he has reported about noise actually amounts to a statutory nuisance. However, this has not been found to be so. The Council has said that on the initial evidence provided by Mr W it is not of the view this meets the required threshold for action.
8. It is not my role to question the professional judgement of qualified environmental health officers absent a finding that its assessment of the evidence is subject to fault. I have not found fault in this respect. In any event, the evidence shows the Council is continuing to assess evidence gathered to keep this under review. We cannot therefore say Mr W has suffered an injustice by reason of a nuisance.
9. In terms of the initial delay, while this was fault, the Council has apologised and I consider this to be an adequate remedy. I see no evidence which justifies a financial payment be made.

Back to top

Final decision

10. We will not investigate this complaint. This is because the restrictions I outline at paragraph three (above) apply.

Back to top

Investigator's decision on behalf of the Ombudsman