New Forest District Council (18 018 047)

Category : Environment and regulation > Antisocial behaviour

Decision : Not upheld

Decision date : 25 Nov 2019

The Ombudsman's final decision:

Summary: Ms D complains the Council has not taken action to help prevent a noise disturbance from cockerels that she and her partner have experienced since 2015. We do not uphold the complaint, finding the Council has investigated satisfactorily.

The complaint

  1. I have called the complainant ‘Ms D’. She complains the Council has not taken action to help prevent a noise disturbance caused by a neighbour keeping cockerels on their land since around 2015.
  2. Ms D says because of the disturbance her and her partner, ‘Mr E’, have suffered impact to their health including Mr E suffering a mental breakdown. She says their children moved out because of the noise. Ms D believes effective action from the Council could have prevented or reduced these impacts.

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  3. 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

  1. Before issuing this decision I considered:
  • Ms D’s written complaint to the Ombudsman and any supporting information she provided including that in emails and a telephone conversation.
  • Correspondence between the Council and Ms D in answer to her complaint and pre-dating my investigation.
  • Information provided by the Council in response to my written enquiries.
  • A noise consultant report commissioned by Ms D and produced in July 2019. I have also considered the Council’s comments on the same and further comments made by the consultant in response.
  • Relevant law and Council policy as referred to in the text below.
  • Comments made by Ms D and the Council on a draft decision statement setting out my provisional findings.

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What I found

Relevant Legal Considerations

  1. The Environmental Protection Act 1990 requires local authorities to investigate complaints about noise that could be a statutory nuisance. The noise complained about can include that caused by pets or other animals.
  2. For a noise to count as a statutory nuisance it must:
  • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
  • injure health or be likely to injure health.
  1. Environmental Health officers investigate complaints of statutory nuisance. They will usually want to witness the noise and come to an independent judgement on whether it meets the definition above. Deciding what noise is a statutory nuisance requires some subjective judgement. So for example, there is no noise that becomes a statutory nuisance simply because of its volume. Volume is one factor in deciding if noise is a statutory nuisance but officers must also take account of matters such as the length, timing and location of any noise.
  2. 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.
  3. Separately, local authorities can also consider taking action to prevent nuisance noise using powers in the Anti-Social Behaviour, Crime and Policing Act 2014. These include serving a Community Protection Notice where noise is having a persistent and detrimental effect on a locality.

Key facts

Background and events in 2015

  1. Ms D and Mr E live in a semi-rural part of the Council’s area. They live on the opposite side of the road to ‘Ms X’ who keeps cockerels on her land. The two houses are around 60metres apart at their closest point to each other. The closest point of their two gardens being around 20 metres apart with the road running between.
  2. Mr E first complained about noise from cockerels on Ms X’s land in March 2015. The Council visited the site twice in April 2015. An Environmental Health Officer (EHO) witnessed some noise from the cockerels but did not consider it a statutory nuisance. But they asked Ms X if she would take action to improve the situation.
  3. In June 2015 Mr E complained again about noise. A different, senior EHO visited twice more. They too considered the noise did not amount to a statutory nuisance.
  4. Also in June 2015 the Council became aware of complaints made by Ms X against Mr E, reporting harassment. This included Mr E playing music at high volume in response to the cockerels, something witnessed by the police and a different EHO.
  5. The Council sent Mr E a letter warning him of the consequences of playing loud music should he continue. This included the potential for it to take action to prevent a statutory nuisance by serving a noise abatement notice. But as the Council did not receive further reports of Mr E causing a noise disturbance it closed its investigation without further action.
  6. In July 2015 a different resident (‘Mr Z’) also complained about noise from the cockerels. The first EHO returned to the site but again said they witnessed no statutory nuisance.
  7. As Mr E and Mr Z persisted with their complaints the Council next arranged to undertake some noise monitoring. It undertook this in November 2015 from the property closest to Ms X. There are conflicting records about whether the Council could retrieve the recordings it made. I saw no record of the noise recording monitoring.
  8. But the Council’s records show its officers made notes of their site visits. They explain why they did not consider the noises heard demonstrated a statutory nuisance.
  9. Separately the Council wrote to Mr E in November 2015 after he contacted the police about the noise. This triggered consideration of whether the noise was antisocial behaviour. Its letter further explained why the Council did not consider the noise he reported was a statutory nuisance. I noted that in email communications with the police there was also discussion about whether the Council could serve a CPN against Mrs X. There is no mention of this in the letter the Council sent to Mr E. Contemporaneous notes suggest officers had little experience in using CPNs to tackle antisocial behaviour at that time.
  10. Sometime around January 2016 Ms X’s cockerel died. Reports of noise stopped and the Council closed its investigation.

Events 2016-17

  1. In August 2016 the Council became aware, via the police, that Mrs X had resumed keeping a cockerel or cockerels on her land (Ms D reports this was from around March 2016). However, it did not receive any requests for a further service either from Ms D, Mr E or any third party. The Council says that even so an EHO visited the site around the time of the report, although they did not witness a statutory nuisance.
  2. In September 2017 Mr E was found not guilty after prosecution for alleged harassment of Mrs X during 2015. But he received a 12 month restraining order. Since this time Ms D has led for the couple on reporting the noise.

Events 2018-19

  1. In January 2018 Ms D contacted the Council reporting further noise disturbance from cockerels. The Council opened a new case file and wrote to Ms D asking her to keep an incident diary. It also sent a letter to Ms X advising it had received complaint and that it would investigate. It spoke to Ms X once soon after sending that letter.
  2. In February 2018 Ms D told the Council she wanted to stop any investigation. But in May 2018 she contacted the Council asking it to reactivate its investigation. In response the Council sent her further incident diaries for completion.
  3. Between June and July 2018 an EHO, previously involved in the 2015 case, visited on three occasions. On at least two occasions their notes record being accompanied by a colleague and the Council says it was on all three visits. The first visit lasted around 30 minutes. The officer witnessed the noise from Ms D’s lounge. They recorded three bursts of crowing. They measured the noise of the crowing as well as other surrounding sounds such as birds and traffic. They recorded the crowing as quieter than these noises. They considered the crowing noise “distinct from residual acoustic environment, however, very intermittent and sporadic”.
  4. The officer’s second visit lasted around 50 minutes. They witnessed crowing from Ms D’s garden. They heard around 12 crows in a 20 minute period, sometimes in short bursts. They recorded the noise as “quite distant, akin to background noise”. Although “one crow sounded louder than another” suggesting two birds. They recorded noise at levels similar to passing traffic and a chainsaw in the background. They concluded the noise was “not intensive or intrusive enough to cause nuisance”.
  5. On the third visit the officer made only a brief note saying they listened from Ms D’s rear garden for around 50 minutes witnessing “no crowing”. The officer agreed to install noise monitoring equipment and did so later in July 2018. Ms D reported the period of noise recording was not typical, with cockerels heard less often. This led Ms D to think Mrs X may have learnt of the recording. But the officer said they had extracted “a number of recordings” of a volume similar to when witnessed in person. Taking account also of Ms D’s diary logs the officer considered the Council had an “accurate picture of the frequency, intensity and volume of the crowing”.
  6. The officer said the recordings did not support a case for statutory nuisance. In a letter to Ms D explaining why the Council had decided to close its investigation, the officer said: “this is largely due to time of day the crowing occurs and the intensity of crowing. Although it is recognised that there are times when the crowing activity does peak and crowing can generally be heard within your property and garden, the associated impact is more akin to annoyance than statutory nuisance”. The letter also said the Council had not contacted Mrs X since the letter sent to her at the beginning of the investigation in February 2018.
  7. Ms D complained at the Council’s decision to close its noise investigation. As part of its response the Council agreed, in January 2019, to undertake further noise recording from the bedroom of her home. This also took account that Ms D reported the crowing becoming worse, with disturbance earlier in the morning, before 7.00am.
  8. The Council reviewed those recordings in February 2019. Its officer reported they could hear crowing, sometimes ‘up to 40dB’ but usually much lower and “unlikely to wake you from sleep or cause sleep disturbance”. The officer also noted early morning recordings were typically lower than those later in the morning suggesting the birds were in a coop. On two days when measurements were greater the officer also noted “significantly higher ambient noise levels and wind noise”. He suggested this implied the “microphone is either outside of the window or the windows have been opened wider than just for ventilation purposes”. They said “measurements taken at these times should be treated with caution”.
  9. The officer concluded “crowing is regularly taking place from around 5:00am from at least one (or more) birds. Unfortunately, I am not satisfied that the volume of the crowing (despite the hour of the day) would be sufficient to have any material impact (i.e. sleep disturbance); this is predominately due to the volume of the crowing at this time of day, even with the windows open for ventilation. Consequently, I cannot conclude that the noise would to amount to a statutory nuisance”
  10. As part of my enquiries I asked the Council if it had given any consideration to whether the noise disturbance reported by Ms D would justify service of a CPN. The Council says it follows guidance published by the Home Office and Chartered Institute of Environmental Health. This says the legal ‘tests’ in deciding whether to serve a CPN, are that the noise must be:
  • ‘having a detrimental effect on the quality of life of those in the locality, and
  • persistent or continuing in nature; and
  • unreasonable’
  1. Given that since 2018 only Ms D has reported disturbance from the cockerels the Council does not consider the noise has a significant impact on the quality of life of ‘those in the locality’. It also considers the noise cannot be considered unreasonable. This is after taking account of the semi-rural location, the time of day of most reports and its recordings.
  2. In response to the Council’s decision not to take enforcement action against the cockerel noise, Ms D has also commissioned a report from professionally qualified noise consultants. They reported in July 2019. They set up recording microphones in Ms D’s garden and a room above her garage, considered similar to the bedroom location. They recorded crows at various volumes. They used a methodology to analyse recordings based on British Standard (BS) 4142, which is a standard used for measuring the impact of industrial noise.
  3. The report explains how using a BS4142 approach, it gives weight to the distinctive ‘tonality’ and ‘impulsivity’ of cockerel crows. These factors increase the impact of sounds heard. The report notes the repetitious nature of the crowing, sometimes heard over several hours which increases its impact on Ms D and Mr E. It criticises some of the method used by the Council when setting up noise recording in January 2019. It concludes from its own evidence and the Council recordings in January 2019 there is ‘potential nuisance’.
  4. In response the Council has defended the method it used to record noise data in January 2019. It has said the report does not lead it to find evidence the cockerels are causing a statutory nuisance and it has some concerns about how the consultants gathered data. For example, where they positioned microphones. It also notes BS4142 is not a tool for measuring noise from domestic animals and considers there is missing data in the report. The Council says it does not consider the report shows there is a statutory nuisance. But it says it will open a further investigation into the noise disturbance “should there be a substantial change in circumstances”. It has advised Ms D also of her right to take a private action for nuisance under the Environmental Protection Act 1990.

My findings

The Ombudsman’s jurisdiction

  1. I have considered first if there are special reasons which justify us investigating the Council’s actions in response to Mr E’s reports of noise nuisance first made in spring 2015. I consider those events the ‘first chapter’ in the history of this matter. They occurred more than 12 months before Ms D made us aware of them in her complaint. A complaint about the Council’s response to those events is therefore a late complaint.
  2. But Ms D argues that when, by 2018, Ms X had replaced cockerels which died, history was repeating itself. There were different birds but causing the same fundamental disturbance to her. I consider that the ‘latest chapter’ in the history of this matter. Ms D considers that when she contacted the Council in 2018, it needed to take account of that and Mr E’s history of previous contact. She considers a more robust response from the Council in 2015 might have stopped her neighbour replacing that cockerel which died. She also questions whether Mr E’s prosecution might have influenced the Council’s response to her contacts in 2018.
  3. I consider these reasonable propositions for me to explore. But I cannot do that unless I am prepared to consider the Council’s response to those contacts which began in 2015 and any relevant events in 2016. I have decided on balance that it is fair for me to do so. There have not been continual requests for a service from the Council made by Ms D or Mr E between 2015 and 2018. But there is enough linkage between the ‘first chapter’ and the ‘latest chapter’ of events that it is reasonable for me to investigate the whole. I am also satisfied that it is not so long ago the Council would not have records to enable a fair investigation.

The Council’s response to events in 2015

  1. Having studied closely the Council’s records in response to Mr E’s reports of noise in 2015 I do not consider I can make a finding of fault against the Council.
  2. I have reached this finding after noting the following:
  • The Council repeatedly visited Ms D and Mr E’s home over several months and that of Mr Z who also reported noise disturbance from Ms X’s birds.
  • It kept reasonably detailed notes of those visits. These show officers remained on their site visits for up to an hour each time. They noted the time, frequency and impact of individual crows. Also the volume of noises recorded and noted background noises.
  • Officer’s notes contained their reasons for why they considered they could not say the noise they heard was a statutory nuisance.
  • The Council did not confine site visits to one officer but sent three different officers to visit the site over time.
  • The notes suggest that while officers did not consider the noise was a statutory nuisance they tried to engage with Ms X in encouraging action that might result in fewer reports of problem noise.
  1. All of this represents good practice. As I explained above it is not our role to find fault with a Council decision based only on the complainant’s disagreement with the outcome. In this case I understand why Ms D and Mr E wanted the Council to do more in 2015 to try to prevent the noise that disturbed them. But that disagreement with the outcome is not enough for me to uphold the complaint. I must consider instead if there was fault in how the Council reached its decision. Given those factors I listed above, I do not consider I could reach that conclusion on this occasion.
  2. I also find no evidence that any decision to prosecute Mr E influenced the Council’s response to reports of noise disturbance. There is nothing on the Council record to suggest it knew of the prosecution decision at the time it actively responded to Mr E’s reports. I also consider it responded to the report of Mr E causing noise nuisance through playing music in a proportionate way.
  3. Nor did I find any evidence of the Council telling Mrs X when it was visiting the site or acting in any other way which might undermine its investigation. I consider it possible Mrs X may have witnessed officers during site visits and acted to prevent noise in response. But it was not fault by the Council if this happened, which is unfortunately unavoidable sometimes in investigations of this kind.
  4. I consider the only criticism I could make of the Council would be that it did not give enough consideration to the possibility of serving a CPN in late 2015. The Council currently does not consider this an option for the reasons I explained above. But I note different facts pertained in 2015 when Mr Z also reported noise disturbance from the cockerels. This may have suggested more impact on the locality.
  5. However, given Ms X’s cockerel died in early 2016 it appears the noise disturbance abated naturally for a time after that. So, I do not think it likely that even if the Council had given more thought to this it would have gone on to serve such a notice.
  6. For a similar reason I have also not pursued details of the noise recording undertaken in late 2015. I consider this took place too late to make any difference to the outcome of the Council’s investigation which would always close once the noise stopped as it did when the cockerel died.
  7. Even if the Council retrieved its recordings and found evidence supportive of a nuisance to Mr Z the Council would have had no grounds to take further action as it understood the noise had abated. I do not consider this evidence potentially gathered in 2015 could then be used in 2018 when it second investigation started. Because by then the Council would need up to date evidence of nuisance it might be able to prevent, in order to justify any enforcement it might take.

Council’s response to events 2016-17

  1. I find no evidence either Ms D or Mr E were pursuing a service from the Council after Ms X began keeping another cockerel or cockerels on her property in 2016. Consequently, I have no grounds to fault the Council’s limited involvement in events during this time.

Council’s response to events 2018-19

  1. I do not consider I can find fault in the Council’s response to Ms D’s fresh reports of noise disturbance, which took practical effect from May 2018.
  2. I reach this finding noting again there is good practice in how the Council tried to investigate Ms D’s reports.
  • The Council repeatedly visited Ms D and Mr E’s home over two months carrying out site visits of a reasonable duration and noise recording over several days. While one officer led the investigation other officers also attended and so could provide a second opinion.
  • It kept detailed notes of those visits. Its officer noted the time, frequency and impact of individual crows as well as the volume of noises recorded. They also took account and recorded background noises.
  • The officer’s notes contain reasons why they considered the noises heard were not a statutory nuisance. They also explained their thinking in writing to Ms D.
  • The Council undertook further noise monitoring when Ms D complained at the outcome of its investigation. It again gave reasons why it did not consider the recordings provided evidence of statutory nuisance.
  1. Despite the above, I consider there are still some matters where the Council fell short of best practice:
  • It is not clear what contemporaneous consideration it gave to the possibility of a CPN, despite its comments that this is something it considered.
  • It did not approach Ms X to see if there are further steps she might willingly undertake voluntarily to reduce the impact of the cockerels.
  1. However, I do not consider these matters are enough for me to find fault with its investigation as they do not call into question its outcome. I also note here there is again no evidence the Council has contacted Ms X during the investigation save for one standard letter soon after it begun. There is nothing to suggest she has known of officer visits or when the Council has installed noise recording equipment.
  2. Consequently, I find again this is a circumstance where Ms D and Mr E disagree with the Council’s view that it cannot take enforcement action. But we cannot say the Council has reached its judgement with fault.
  3. I have also considered if there is anything in the consultant’s report which would lead me to find fault with the Council. The first point I note here is that it is not uncommon that professionals working in the same field can examine the same problem and arrive at a different conclusion. Various factors can contribute to that, including the use of different methods which I consider has contributed to the varying findings here.
  4. I make no criticism of the methodology used by Ms D’s consultant. But that does not mean that I consider the Council obliged to use the same method. I consider the Council can reasonably disagree with the consultant about the decision to site microphones away from the home’s main living areas. Also, it can reasonably disagree on the applicability of using a BS4142 assessment for noise that is not industrial or commercial in nature. It is not my role to adjudicate on such disputes between professionals.
  5. I find the consultant’s report makes a robust case that Ms D and Mr E suffer significant noise disturbance from the cockerels, although I note it stops short of offering an opinion that statutory nuisance occurs. But I also take account of what Ms D has told me first-hand of the impact of the noise. I accept the noise clearly has caused her and Mr E and their children distress. I consider all of this could form the basis for Ms D to undertake her own complaint for nuisance through the courts. But I do not find the Council obliged to open another investigation. Its suggestion that it will only do so if there has been a significant change in the noise disturbance experienced by Ms D and Mr E is reasonable given that it has clearly gone to efforts previously to investigate their concerns.
  6. But should the Council open another investigation in the future I would ask it to note my comments above. Also, that it considers any informal representations it could make to Ms X to see if noise disturbance from the cockerels can be reduced.

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Final decision

  1. For reasons set out above I do not propose uphold this complaint as I find there is no or insufficient evidence to conclude the Council acted with fault causing an injustice to the complainants. I have completed my investigation satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman

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