Nuneaton & Bedworth Borough Council (19 001 127)

Category : Environment and regulation > Antisocial behaviour

Decision : Not upheld

Decision date : 31 Oct 2019

The Ombudsman's final decision:

Summary: Ms X complains the Council was at fault in the way it dealt with her complaints of noise nuisance caused by her neighbour. The Ombudsman has found no evidence of fault in the way the Council considered these matters so has completed his investigation.

The complaint

  1. The complainant whom I shall refer to as Ms X complains the Council failed to act on her complaints of noise nuisance caused by her neighbour. Ms X says the Council ignored her concerns and failed to act on her suggestions to resolve the noise problem. Ms X considers the Council favoured her neighbour’s personal circumstances above those of her own.
  2. Ms X says the noise prevented her from sleeping and caused her distress.

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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)

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How I considered this complaint

  1. I have read the paper submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Ms X and the Council and considered comments.

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What I found

The Council’s Statutory Nuisances Policy

  1. The Council’s Statutory Nuisance Policy (policy) sets out how it will deal with complaints of nuisance including noise. It says the noise needs to be a statutory noise nuisance for it to act. It is ‘noise emitted from a premises so to be prejudicial to health or a nuisance.’ The Council says a statutory noise nuisance has no precise definition. However, it has to maintain a balance between the rights of the person complained about to use their property in a reasonable manner and the rights of the complainant to have now ‘unlawful interference with the use and enjoyment of their own premises.’
  2. According to the policy the Council will obtain evidence through diary sheets and noise monitoring equipment. It will then decide whether to take further action and serve a noise abatement notice if there is evidence of a statutory noise nuisance. The Council needs to witness the nuisance and any breaches of an abatement notice to decide whether to take any further action.
  3. It is open to an individual to take their own action on a noise nuisance to a magistrate’s court.

Key events leading to the complaint

  1. Ms X contacted the Council’s Environmental Protection service (EP service) to complain about loud noise from her neighbour’s TV. The EP service responded to Ms X and explained its procedure for investigating noise nuisance. It confirmed it would write to Ms X’s neighbour about the noise complaint. Ms X asked the Council to put the case on hold as she was travelling abroad. The Council agreed and advised Ms X to make contact on her return to progress matters.
  2. Ms X contacted the Council on her return and complained of noise from her neighbour’s property. Ms X considered it due to her neighbour’s TV on the party wall between properties. Ms X complained the noise late at night and at weekends affected her sleep. Ms X asked the Council to deal with the matter quickly. The Council advised there was no ‘quick fix’ as it had to follow legislation to deal with the complaints.
  3. The Council sent Ms X’s neighbour an advisory letter about the noise complaint. It told Ms X there was no evidence to substantiate a nuisance and it was often difficult to corroborate as the noise was intermittent. The Council sent Ms X diary sheets to fill in for two weeks. On return officers would assess whether to take further action. The Council advised Ms X about taking her own action through the magistrate’s court. Ms X reported the noise improved slightly after the Council wrote to her neighbour.
  4. Ms X’s neighbour responded to the Council denying excessive noise and reported noise was a neighbourhood issue.
  5. Ms X sent diary sheets to the Council. EP officers assessed the diary sheets to decide on the next steps to take. The Council says this is according to its policy.
  6. The Council installed noise monitoring equipment at Ms X’s house and removed it two weeks later as part of its policy to gather evidence. The EP officers listened to the recordings and while noting there was some TV noise did not consider it a statutory noise nuisance.
  7. An EP officer spoke to Ms X’s neighbour who agreed to set a volume level on the TV with Ms X to prevent further complaints. The Council says this was not a policy procedure but was an option to consider if both parties agreed.
  8. Officers told Ms X there was no evidence of a statutory noise nuisance and she agreed with the suggestion to set levels for the TV. Ms X asked the Council to suggest her neighbour reduced noise by using headphones or other options. The Council advised while it can suggest it could not enforce them. It explained it can only act where there is a statutory noise nuisance even if the noise may be causing some annoyance. The Council said it could not enforce complete silence from a property.
  9. Ms X responded that she did not expect complete silence but she could still hear the TV as it was loud. Ms X said was affecting her sleep and causing her stress. The Council advised it could not act as there was no evidence of a statutory noise nuisance but offered a referral for mediation which Ms X accepted.
  10. The Council referred Ms X and her neighbour for mediation. The Council says this is not part of its procedure but is an option which can be considered if both parties agree to it. Ms X asked the Council for noise monitoring equipment while waiting for mediation as she considered the noise levels had risen again.
  11. EP officers installed noise monitoring equipment again at Ms X’s property and removed it two weeks later. Officers listened to the recordings. While there was some noise it was not considered to be a statutory noise nuisance and officers advised Ms X of this.
  12. Ms X’s neighbour decided against setting the volume levels of the TV because of agreeing to mediation. Ms X sent a video clip of the volume from the TV. Officers viewed the clip but considered there was no statutory noise nuisance and informed Ms X.
  13. Ms X submitted a complaint to the Council about the way it dealt with her complaints of noise nuisance. The Council responded that EP officers had followed its noise complaints policy when considering her complaints. It said due to the type of property she lived in there would be some degree of noise transference between buildings. The Council explained it has to make a judgement about whether there was a noise nuisance and recordings carried out so far did not show a statutory noise nuisance. But it agreed to add her to the Out of Hours witnessing service outside its normal procedure. This involved two officers visiting on three occasions and spending up to 20 minutes at her property.
  14. The Out of Hours Officers visited Ms X’s property but did not consider the volume of the TV a statutory noise nuisance and told Ms X. Ms X escalated her complaint as she remained unhappy and considered the Council allowed her neighbour to dictate action on the case.

The Council’s response to Ms X’s complaint

  1. The Council disagrees with Ms X’s allegation it allowed her neighbour to dictate action. It says it found no evidence of a statutory nuisance but offered to try to set levels as a precaution. This needed both parties to cooperate and they are under no obligation to take part. The Council says it also offered mediation to see if it would help. It says it cannot legally enforce either offer.
  2. The Council says it gave Ms X noise monitoring equipment for two weeks with arrangements to collect and install outside officer working hours. The recordings did not provide evidence of a statutory noise nuisance, but Ms X still insisted it was an issue. Due to this the Council agreed to allow her access to the Out of Hours witnessing service. This was outside its procedure as normally it uses this service only when there is evidence of a statutory nuisance.
  3. The Council says Ms X asked it send further letters to her neighbour asking them to keep the noise levels down despite the Council having no evidence to substantiate the noise. The Council considered this unfair to Ms X’s neighbour as it could not justify sending such letters. The Council considers there was not enough evidence to pursue matters further. But if Ms X considers she has enough evidence she can pursue a complaint to the magistrate’s court herself. And the Council has advised her how to do so.
  4. The Council says it closed the case in October 2018 due to no more contact from Ms X. It says Ms X can reopen the case if needed and has access to two more visits from the Out of Hours Service.

My assessment

  1. The documents provided by the Council show it has responded to MS X’s complaints according to its policy. It is limited on the action it can take if there is no evidence of a statutory noise nuisance
  2. However, the Council has acted beyond its policy by seeking agreement to set levels and use mediation to try and resolve matters. There is no evidence the Council favoured Ms X’s neighbour. Ms X’s neighbour agreed to the level setting and mediation at first but then declined. This is unfortunate but the Council cannot force Ms X’s neighbour to take part if they do not wish to.
  3. Ms X disagrees with the Council’s decision there is no evidence of a statutory noise nuisance, but the decision is a matter of the officers’ professional judgement. The Ombudsman cannot question the merits of the decision itself without evidence of fault in the way it was made. There was no fault in this case.
  4. Officers have considered Ms X’s information, installed and listened to results from noise monitoring equipment and visited her property as part of the Out of Hours service. The officers did not consider there was evidence of a statutory noise nuisance. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached this decision.
  5. Ms X can contact the Council again if there are further noise issues or she can take her own action via the magistrate’s court.

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Decision

  1. I have completed my investigation. I have found no evidence of fault by the Council in the way it responded to Ms X’s complaints of noise nuisance.

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Investigator's decision on behalf of the Ombudsman

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