Wellingborough Borough Council (18 018 486)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 13 Sep 2019

The Ombudsman's final decision:

Summary: Miss B complains about the actions of the Council after a neighbour complained about noise and anti-social behaviour from her address. The Ombudsman finds that, except for the faulty installation of sound recording equipment which led to no injustice for Miss B, the Council’s actions in this matter were not affected by fault.

The complaint

  1. The complainant, whom I shall call Miss B, complains that the Council acted unreasonably in response to complaints of anti-social behaviour made against her by neighbours and failed to provide her with evidence it said it held.

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What I have investigated

  1. I have investigated how the Council dealt with complaints of anti-social behaviour (ASB) it received in this case.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I considered all the information submitted by Miss B about her complaint. I made written enquiries of the Council and took account of the information it provided in reply. I provided Miss B and the Council with a draft of this decision and considered all comments received in response.

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What I found

  1. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to abate such nuisance. In relation to noise, a statutory nuisance is defined as a “noise emitted from premises so as to be prejudicial to health or a nuisance”. The Council is required to investigate complaints of noise nuisance. It will gather evidence to establish whether the noise is causing a statutory nuisance. As there is no set level at which a noise becomes a statutory nuisance, the Council’s role is to make a judgement, considering several factors such as the type of activity, locality, time of day, frequency and duration of the noise.
  2. Local authorities have various powers to deal with anti-social behaviour (ASB) in their area. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines ASB as:
    •conduct that has caused, or is likely to cause, harassment, alarm or distress to any person; or
    •conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or
    •conduct capable of causing housing related nuisance or annoyance to any person.
  3. Under the Crime and Disorder Act 1998 imposes a general duty on councils to try and prevent ASB. Councils can do this in various ways. They can use specialist officers who can liaise with police or other organisations as necessary. They can consider trying to resolve disputes informally, such as through use of mediation or giving advice. Or, they can use formal powers.
  4. The Council’s environmental health enforcement policy sets out the range of options available to it under the law, from offering informal advice to prosecution. Decisions on enforcement action are a matter of professional judgment.

What happened in this case - background

  1. Miss B has lived at her address for 17 years, and for the last eight years has had a dog. She says the dog only barks if she is going for a walk or if there is someone at the door. New neighbours moved to live next door to Miss B in 2017.

Complaints about noise begin

  1. In mid-July 2018 the Council received a complaint alleging that Miss B’s dog was constant barking. The neighbour said there were also issues with noise form a television, and from slamming of doors. The Council logged this as a noise complaint and began its enquiries. The neighbour was provided with diary sheets to log instances of noise. The Council issued a standard letter and leaflets to Miss B the same day. It said that at this stage the allegations had not been substantiated but asked Miss B to consider if her dog was barking excessively and to be mindful of it. It said monitoring visits and recordings could be made. It said it would contact Miss B again if more complaints were received or to advise if its involvement in the matter was completed.
  2. Miss B responded to the Council, submitting a supporting letter from a previous neighbour. The Council telephoned Miss B and explained the investigation process.
  3. As competed diary sheets had not been received by the Council a month later, the Council contacted the neighbour who said they had been submitted on 8 August and so must have got lost. They said the barking was still going on and was causing distress, and they did not feel they should have to complete more diary sheets before action was taken. The Council took the view that rather than wait for more diary sheets it would progress to investigation, in the hope of resolving the matter more speedily for both sides. It acknowledged that Miss B was being caused distress by the allegations and so action to speed up resolution ought to have been helpful.
  4. Having decided to proceed to investigation, on 23 August 2018 the Council write to Miss B to tell her this. The letter said a sound monitoring device might be installed and asked Miss B to take steps in respect of any noise from excessive dog barking.
  5. The neighbours were provided with more diary sheets and on 26 September 2018 sound monitoring equipment was installed buy a contractor acting on behalf of the Council. On 30 September the neighbour telephoned the Council reporting amplified television noise, banging on the walls, and slamming doors at Miss B’s address. The neighbour also said the noise monitoring equipment was no longer working.
  6. The Council subsequently established that it had not been correctly installed. Having collected the equipment the Council noted the neighbour’s diary for the period when the recording equipment was in place set out that they had made 16 recordings of the dog barking, including after 9pm; the banging of doors, walls and windows; and television noise. But only four recordings were available on the device and the times for those did not match those listed on the diary sheet.
  7. Because the reported noise was no longer restricted to the barking of a dog, the case was passed to a community protection officer to consider as an ASB matter. Recording equipment was installed again on 5 October 2018, but the same evening the neighbour called the Council to report noise from Miss B’s television and to say the recording equipment was again not working.
  8. When the Council had once again collected the recording equipment it appeared to be working correctly. The Council managed to retrieve six recordings but only three were on the diary sheet. The first three recordings were noise from the household itself, and the second three (which related to the diary sheet entries) were television noise and it was not possible to ascertain whose television it was, because there was too much noise in the property where the recording device was in place.
  9. In the meantime, the Council had been contacted by a police community support officer (PCSO) who advised that the police were also receiving reports about Miss B’s address and had visited. The PCSO felt there was a neighbour dispute and that mediation would be the best course of action, but he did not feel either party would agree to it.

Reviews of the evidence and liaison with the police

  1. The recordings were reviewed by the team leader for environmental protection. There were two potential bangs on the first recording; one recording of potential television noise from Miss B’s address and then a slightly fainter one later. The officer decided to put the case on the list of addresses for out of hours response, and to speak to the PCSO about the allegations. The officer spoke again to the neighbour, who reported the dog being encouraged to bark, barking at 10.30pm and all night on 10 October 2018. They had recorded barking between 2.00am and 5.00am. They reported door slamming and late-night television noise. They reported confrontation with the neighbours and issues involving the parking of vehicles.
  2. Miss B contacted the Council on 12 October 2018 to express her dissatisfaction with how the matter was being dealt with and to say she wished to pursue her neighbours for harassment. The Council advised that the situation was becoming a neighbour dispute that needed to be resolved by discussing the issues with both parties and seeking a resolution. The Council said it was liaising with the police over a plan of action. The Council spoke to Miss B again on 15 October, when it explained what had happened so far and that recordings had not revealed anything actionable. It said the next step would be to visit both parties, asking for doors to be closed and the television put on to gauge the level of noise from the neighbouring property. The Council said it could also discuss other matters such as vehicle parking. Miss B felt her neighbour would not agree. Another option would be to see if an officer could witness any noise reported to the out of hours service.
  3. The Council then liaised further with the police and a plan was proposed for an Acceptable Behaviour Contract (ABC) to be drawn up for the agreement of both sides. However, Miss B subsequently said she did not want to go ahead with this.
  4. On 26 November and 28 December 2018, the Council visited the neighbour to view CCTV footage and listen to sound recordings. CCTV footage included Miss B’s dog running loose and unaccompanied on the driveway on one occasion and running loose on the property on another. Sound recordings included amplified music at 9.45pm one evening, and the slamming of doors and the dog barking ‘continuously’ outside on other occasions. The officer noted that while listening to recordings with a headset on she heard and felt a significant bang from next door.

The Council issues a Community Protection Warning letter

  1. Based on the evidence reviewed, the Council decided on the balance of probabilities there was enough evidence that dog roaming, slamming doors, amplified music and television noise and excessive dog barking were occurring. On 14 January 2019 it therefore sent Miss B a Community Protection Warning (CPW) letter under the Anti-Social Behaviour Crime and Policing Act 2014. Miss B was required to take action to address the behaviours set out in the letter and if she failed to do so the Council would consider the formal step of issuing a Community Protection Notice.

The Council closes the case

  1. On 23 April 2019 the Council reviewed the case and decided to close it. It wrote to Miss B and her neighbour to inform them of this. It explained that since the CPW had been issued its officers had not witnessed or received substantive evidence to demonstrate excessive noise or intentional noise from Miss B’s address. The Council wrote again to Miss B on 16 May 2019 saying it had concluded its investigation and did not intend to take any further action.
  2. Miss B was dissatisfied and wanted the CPW warning letter ‘revoked’.

Analysis

  1. The evidence in this case shows the Council took appropriate action in response to complaints of noise and other nuisance from Miss B’s address. As set out in paragraphs 7-10 above, the Council has duties and powers in law to deal with such reports, and it has policies and procedures which set out how it will exercise those duties and powers. Having received allegations of noise, firstly barking noise and later other anti-social behaviour, the Council acted appropriately to seek to gather evidence to either prove or disprove those allegations. Discussions involving both parties were suggested as well as ABCs, but agreement could not be reached. In the circumstances of the case the Council was entitled to reach the view that a CPW was appropriate, having exercised professional judgement taking account of the information gathered. It then properly reviewed the matter after three months and took action to close the case and advise both sides accordingly.
  2. Apart from the incorrect installation of the sound recording equipment on the first occasion, which did not lead to injustice for Miss B, the Council’s actions in this matter were not affected by fault.

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Final decision

  1. I have completed my investigation as set out above.

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Parts of the complaint that I did not investigate

  1. I did not investigate the Council’s action in not sharing with Miss C the evidence it considered in relation to the complaints made by her neighbour. This is because if Miss B considers the Council has a duty to disclose information to her and has refused to do so, she could make a complaint to the Information Commissioner, and it would be reasonable for her to do so.

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Investigator's decision on behalf of the Ombudsman

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