Summary: Ms C complains the Council failed to respond properly and take timely action in response to her reports of noise from her neighbour’s dog. Ms C says she and her family have suffered distress and loss of sleep for longer than necessary and future legal proceedings may be adversely affected. The Ombudsman has found delay and other fault in the way the Council has dealt with this matter. The Ombudsman considers the agreed actions of an apology, £100 and procedural review provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains the Council failed to respond properly and take timely action in response to her reports of noise from her neighbour’s dog.
2. Ms C says because of the Council’s fault she and her family have suffered distress and loss of sleep for longer than necessary and the delay may affect the success of future legal proceedings.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I read the papers provided by Ms C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Ms C after removing third party details. I explained my draft decision to Ms C and the Council and considered the comments received from both parties before reaching my final decision.

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What I found

Background and legislation

6. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
7. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

8. For the issue to count as a statutory nuisance, it must:

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

9. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
10. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
11. Councils can also decide to take informal action if the issue 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. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
13. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
14. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
15. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
16. Councils have separate powers to deal with anti-social noise.
17. The Anti-Social Behaviour, Crime & Policing Act 2014 provided new powers. 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.
18. 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. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.
19. A council may issue a CPN while it is investigating whether the behaviour constitutes a statutory nuisance. Issue of a CPN does not relieve the council of its obligation to serve an abatement notice under Part 3 of the Environmental Protection Act 1990 where the relevant test is met.

Key events

20. The Council received a report from Ms C about her neighbour’s dog barking at the end of January 2018. The Council has provided a copy of the initial record of this report which stated the dog had been barking for over four months mostly in the early mornings and late evenings which was keeping her family awake. The record also says Ms C had bought a device to stop the barking which had not worked and spoken to her neighbour who had confirmed the dog was a rescue dog they had had from October 2017.
21. The Council acknowledged Ms C’s report and sent her diary sheets to complete in early February. The Council also wrote to Ms C’s neighbours. The Council attempted to visit the neighbours in March but did not gain access.
22. The Council installed noise monitoring equipment at Ms C’s property at the end of March. The Council collected the equipment in April. The Council assessed the noise recordings in June and decided the noise constituted a statutory nuisance. The Council wrote to Ms C’s neighbours to say it would not serve an abatement notice if the matter was addressed within seven days. The Council met with Ms C’s neighbours towards the end of June. There was an improvement for about six weeks. Ms C then made further reports of noise.
23. The Council installed noise monitoring equipment at Ms C’s property during August. This identified the noise was at a similar level to the previous recording.
24. The Council sent a CPN warning letter to Ms C’s neighbours in October. The Council also installed noise monitoring equipment at Ms C’s property which identified no improvement. The Council served a CPN in November. The Council subsequently met Ms C’s neighbours. They suggested the source of the noise was another dog.
25. The Council decided it needed to witness the noise to ensure any evidence of a breach was robust and made arrangements for visits to be made out of hours to witness the dog barking. However, the Council did not obtain any further evidence to support either prosecution or issue of a fixed penalty for breach of the CPN. Ms C contacted the Council again in early January 2019 to say there was further disturbance from the dog.
26. The Council decided there was insufficient evidence witnessed by Council staff to substantiate the complaints alleging breach of the CPN or to provide evidence of a statutory nuisance and it would close the case. Ms C complained about this decision.
27. The Council advised Ms C at the end of January 2019 that it would carry out visits over one month to witness the noise and decide what action to take. The Council completed several visits at different times during February and considered there was still little evidence of a breach other than one noted on 13 February. The case officer advised Ms C in early March that they would put the case forward for prosecution.
28. The case officer completed a witness statement and referred the case to the Council’s legal team for prosecution in early April. The legal team sought further information in May and July. The Council advised Ms C in September that the initial hearing was listed for January 2020. The Council served the summons on Ms C’s neighbours in November. Ms C then advised the Council she understood the dog had died but a new dog at the property was causing noise.
29. The Council’s legal team advised keeping the court date and close monitoring of the situation as the CPN was still operative and could institute proceedings if further breaches. Ms C continued to report noise nuisance from the new dog.
30. The court hearing in January was adjourned to 15 April as the defendants did not appear.
31. The Council has confirmed the prosecution case was intended to be based on evidence of an alleged breach of the CPN witnessed by the case officer on 13 February 2019 included in the witness statement dated 18 March 2019 and which was originally sent to legal services on 3 April 2019. This evidence was the primary Council evidence of a breach of the notice served and supplemented by the witness statements from Ms C and others which provided additional evidence of the continued noise from the dog.
32. For a case to be taken before the Magistrates’ Court the information generally needs to be laid before the Court within six months of the date of the offence. The Council sent the information laid before the Court by email to the Magistrates’ Court on 29 August 2019 and this stated that the alleged offences occurred between 1 March 2019 and 24 April 2019. The Council cannot say what impact this will have on the prosecution but notes it can only rely on the evidence between the dates mentioned in the information laid before the Court.

My consideration

33. The Council completed noise monitoring from the end of March to early April 2018 but did not review the recordings until early June. The Council has explained the equipment was in regular use during this period. However, this should not prevent the information being downloaded on the equipment’s return before being used elsewhere. The Council also says it only has a small team dealing with environmental health pollution issues. In response to an earlier draft of this decision, the Council has further explained that it only has one copy of the necessary software which is held on a separate laptop which requires a dongle access to analyse and review the recordings. The Council says it is not unusual for its assessment of recordings to take several weeks depending on an officer’s workload which in this case was particularly high. The Council has accepted the time taken in this case to review the recordings resulted in some additional delay in coming to a decision. Whilst it is reasonable for the Council to prioritise cases I consider there was avoidable delay here which constitutes fault. The Council may also wish to consider reviewing the availability of its software as this appears to be causing unnecessary delays.
34. The Council considered the noise from the above monitoring was a statutory nuisance in early June but deferred issuing an abatement notice to try and address the matter informally. This is an acceptable approach to take and I note there did follow a period of improvement.
35. However, further noise monitoring from August identified the noise was at the same level as previously. The Council did not then issue a noise abatement notice but issued a CPN warning (and subsequent notice) instead. The Council says the case for a statutory nuisance existing was marginal and not all the evidence it had collated from recordings, officer visits and observations supported statutory nuisance action being taken. The Council says it considered whether to serve an abatement notice when further complaints were received after deferring issuing such a notice in June. The Council says its intention was to try and engage with the owners of the dog to reduce the noise disturbance by issuing a CPN warning. When this approach was not successful the Council served a CPN which was itself subsequently breached.
36. I am concerned about the Council’s approach here. Although marginal, the Council was satisfied a statutory nuisance was happening, had happened or would happen in the future. In these circumstances it must serve an abatement notice. The delay in serving an abatement notice to try and address the problem informally is allowable for a short period only. I consider the Council should have issued an abatement notice in August when this monitoring identified the noise was at the same level as previously identified as a statutory nuisance or the Council should have advised the parties it did not consider the noise constituted a statutory nuisance with its reasons. Having said this, I note the serving of the CPN had little effect on the behaviour of Ms C’s neighbours as this notice was subsequently breached. On balance, I do not consider the use of an abatement notice would have led to a different outcome.
37. The Council passed the matter to its legal team with a recommendation for prosecution of a breach of the CPN in early April 2019. There is a delay until further information is requested by Legal at the end of May and again in July. The Council does not confirm it is taking legal action to Ms C until September or issue the summons until October. The Council has accepted there were delays in the issue of the summons that could have been resolved by closer liaison with the legal team before and during the prosecution process. I consider this delay also constitutes fault.
38. Ms C informed the Council in November 2019 the dog that had been the source of the noise had died but a new dog at the property was causing noise nuisance. The legal team advised relevant officers to keep the existing court date and maintain close monitoring of the situation as the notice was operative and it could institute proceedings if there were further breaches of the notice. However, the Council has confirmed this monitoring did not take place and no new evidence was to be presented at the January hearing. The Council has confirmed the hearing in January was a first hearing to take pleas from the defendant and the Court would not at that stage have been able to hear any new evidence that had not previously been submitted with the information laid. The Council decided not to undertake any further monitoring until after the meeting with Ms C’s neighbour on 20 November 2019 to confirm the dog had died. It also noted from Ms C’s reports that the noise was mainly occurring outside normal office hours. The Council further says two officers left the Council in January 2020 which significantly impacted its ability to spend any further time on this case during the period immediately preceding the original Court date. Ms C says the nuisance is ongoing.
39. It is difficult to assess the impact of the delays identified above or the lack of more recent monitoring on the outcome of the legal proceedings which will be a matter for the Court in due course. However, I am satisfied that Ms C has been caused unnecessary uncertainty and frustration whatever the eventual outcome. In the circumstances, it will also be open to Ms C to revert to the Ombudsman once the outcome of the legal proceedings is known.

Agreed action

40. The Council will:
1. write to Ms C to apologise and pay her £100 for the uncertainty and frustration caused by the fault identified above within one month of my final decision;
2. ensure it responds in a timely manner to any new reports from Ms C about noise from the new dog and assess whether this constitutes a statutory nuisance or requires other action and to advise Ms C accordingly;
3. review its procedure to ensure abatement notices are issued where a statutory nuisance has been identified within three months of my final decision; and
4. review its procedures to ensure there is a clear understanding between officers and the Council’s legal team about what information is required at each stage ahead of a prosecution.

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Final decision

41. I have completed my investigation as I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman