Summary: Mrs C complains about the way the Council dealt with her reports of noise and other nuisance from her neighbour which led her to move home with all the associated upset and costs. The Ombudsman has found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about the way the Council dealt with her reports of noise and other nuisance from her neighbour from August 2015. In particular, Mrs C does not consider the Council was even handed in its approach and took too long to act.
2. Mrs C says because of the Council’s fault she had to move home with all the associated upset and costs.

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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 a council’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. 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)

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How I considered this complaint

6. I read the papers provided by Mrs C and discussed the complaint with her. I have considered some information from the Council and provided a redacted version removing confidential third-party information of this to Mrs C. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Legislation and background

7. The Environmental Protection Act 1990 provides that councils must investigate complaints about noise that could be a statutory nuisance. For a 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.

8. Generally, the statutory nuisance will need to be witnessed by an Environmental Health Officer and they will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be subjective. The level of noise, its length, timing and location may be considered in deciding whether a nuisance has occurred.
9. 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.
10. It is open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.
11. Councils can decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
12. Councils have separate powers to deal with anti-social noise. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour as:

“(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person

(b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or

(c) conduct capable of causing housing related nuisance or annoyance to any person.”

13. This Act replaced the Anti-Social Behaviour Order (ASBO) introduced by the Crime and Disorder Act 1998 with six new powers:

• civil injunction (this is a court ordered injunction for up to 12 months.)
• criminal behaviour order (this is an order made after conviction for a criminal offence.)
• community protection notice
• public spaces protection order
• closure power
• dispersal power

14. The Act also introduced the ‘community trigger’ to give victims and communities a say in how local agencies deal with anti-social behaviour. The process allows members of the community to ask the Community Safety Partnership to review its responses to complaints of anti-social behaviour.
15. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a detrimental effect on the community's quality of life and is considered unreasonable. CPNs require the behaviour to stop and, where appropriate, require reasonable steps to be taken to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN.

Key events

16. Mrs C lived in a semi-detached property. A new neighbour moved next door to Mrs C in 2014.
17. Mrs C reported noise from her neighbour’s DIY works to the Council in August 2015. The Council acknowledged Mrs C’s report and sent her diary sheets to complete during September. The Council also wrote to Mrs C’s neighbour and visited him. Mrs C’s neighbour made counter allegations.
18. Mrs C returned the completed diary sheets towards the end of September. The Council arranged noise monitoring in October and November. The Council reviewed the recordings and considered the noise did not constitute a statutory nuisance. The Council provided guidance to Mrs C’s neighbour about acceptable hours of work. The Council also wrote to Mrs C to confirm the outcome and advised of her private right of action.
19. Mrs C contacted the Council about further noise in November. The Council wrote to Mrs C offering further noise monitoring and to ask her to telephone when the noise was at its worst so an officer could attend to monitor in person.
20. Mrs C contacted the Council about noise from DIY works again in January 2016. The Council completed further noise monitoring during January which did not identify a statutory nuisance. The Council made a referral for mediation for Mrs C and her neighbour in February. This resulted in an agreement which both Mrs C and her neighbour signed.
21. Mrs C contacted the Council in April to say the agreement had broken down and she was still experiencing unacceptable noise. The Council sent diary sheets to Mrs C and explained it wanted to try and identify a pattern as the noise was intermittent. The Council also wrote to Mrs C’s neighbour. Mrs C contacted the Council in May to say she did not intend to return the diary sheets as the situation had improved although her neighbour was not keeping to the mediation agreement.
22. There was involvement by the police at the end of 2016 and early 2017 about alleged harassment and counter allegations involving Mrs C’s neighbour and her partner.
23. The Council’s Neighbourhoods Team became involved when the behaviour of Mrs C’s neighbour included potential anti-social behaviour. The case was discussed at several multi-agency meetings before being referred to the anti-social behaviour risk assessment conference (ASBRAC) in May 2017 and discussed at monthly meetings between June 2017 and January 2018.
24. The Council received a report about Mrs C’s neighbour causing noise from another resident in May 2017. The Council provided diary sheets and wrote to Mrs C’s neighbour.
25. Mrs C reported noise from her neighbour playing loud music to the Council in May. The Council completed noise monitoring during June at both Mrs C’s property and the property of the other resident who had reported noise.
26. The other resident did not record any noise. However, the Council reviewed Mrs C’s recordings and identified a statutory nuisance. The Council issued a noise abatement notice (NAN) concerning loud music to Mrs C’s neighbour in June. Mrs C contacted the Council in July to say the music noise had improved but her neighbour was now making banging and slamming noise. This was outside the terms of the NAN.
27. The Council completed further noise monitoring and witnessed a breach of the NAN in August. The Council considered the options of removing equipment from the neighbour’s property or seeking a prosecution and sought both legal and medical advice. During this period there was some information the Council could not provide to Mrs C.
28. The Council wrote to Mrs C’s neighbour in November about the loud music and referred to the NAN in place and warned that it may prosecute or remove his sound equipment. Mrs C left her property in November.
29. The Council sought further legal advice in December about the possibility of removing equipment or prosecution. Following this advice, the Council issued a CPN warning letter to Mrs C’s neighbour about noise, defamatory signage, throwing items, excavation works, boundary damage, CCTV use and threatening behaviour. The Council sought specific actions from Mrs C’s neighbour and wrote to explain its actions to Mrs C.
30. Mrs C was unhappy about the Council’s response to her reports and made a formal complaint in February 2018. The Community Trigger process was initiated in March with an independent review by an officer of another council. Mrs C was provided with the report following this review in June. This identified a lack of action plans and lead officer for the multi-agency meetings. The reviewer also considered it was possible some actions such as the CPN warning could have been taken earlier in the process and if these had not worked other sanctions under the relevant ASB legislation could have been sought.
31. The Council wrote to Mrs C in August and confirmed it had accepted the lessons learned of an earlier assessment of options available and a more joined up approach but that its actions had been reasonable and proportionate in the particular circumstances of this case.

My consideration

32. Based on the evidence provided, I am satisfied the Council properly responded to Mrs C’s reports in 2015 and 2016 of noise nuisance from her neighbour. The Council contacted Mrs C’s neighbour and completed noise monitoring which did not identify a statutory nuisance. The Council advised Mrs C of this outcome and her own private right of action and referred the parties to mediation.
33. I am also satisfied the Council properly responded to Mrs C report of noise nuisance from her neighbour playing loud music in May 2017. The Council completed noise monitoring during June which identified a statutory nuisance. The Council issued a NAN in June and witnessed a breach of this in August.
34. I have given particular consideration to the period between the Council witnessing the breach of the NAN in August and issuing a CPN warning to Mrs C’s neighbour in December. I note the Council was considering the options available to it and seeking both legal and medical advice during this period. The Council acted in accordance with the advice received.
35. The Council involved its Neighbourhood Team once the issues widened from the original noise complaint and liaised with the police and other agencies through multi-agency meetings before the matter was referred to the ASBRAC largely due to concerns about the impact the situation was having on Mrs C.
36. The decision not to remove equipment or prosecute Mrs C’s neighbour for the breach of the NAN but rather issue a CPN warning was one the Council was entitled to reach. On balance, and taking all the relevant factors into account, I consider there was no significant or avoidable delay in issuing the CPN warning. For reasons of confidentiality there was information the Council could not share with Mrs C. However, I have seen nothing to suggest the Council was not even-handed in its approach as suggested.

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Final decision

37. I have completed my investigation as I have found no evidence of fault by the Council in the way it responded to Mrs C’s reports.

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Investigator's decision on behalf of the Ombudsman