Summary: Mr B complains the Council has failed to stop the noise nuisance he experiences from the neighbouring house. He says the Council has not taken account of his disabilities. He also complains the Council has not acted on his complaint that the house is used as a business. He says that as a result he has experienced excessive noise and disturbance. There was fault by the Council which has caused injustice to Mr B.

The complaint

1. Mr B complains the Council has failed to stop the noise nuisance he experiences from the neighbouring house. He says the Council has not taken account of his disabilities which prevent him from completing noise diaries or taking photographs/videos of the nuisance. He also complains the Council has not acted on his complaint that the house is used as a business. He says that as a result he has experienced excessive noise and disturbance.

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What I have investigated

2. Mr B says there have been problems for many years but I am considering the events since August 2018.

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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. 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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

Statutory nuisance

6. Councils consider complaints about ‘statutory nuisance’ as defined in the Environmental Protection Act (EPA) 1990. For the problem complained about it must be judged to ‘unreasonably and substantially interfere with the use or enjoyment of a home or other premises’ or ‘injure health or be likely to injure health’. Generally, the nuisance will need to be witnessed by an environmental health officer and they will come to a judgement. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has occurred.

Planning enforcement

7. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

What happened

8. Mr B complained to the Council about the problems he was experiencing from the neighbouring property at the end of September 2018. His complaint was about bonfires and anti-social behaviour, the property being used as a business, and the occupiers shouting and screaming throughout the night.
9. An officer spoke to Mr B who said the problems were long-standing and the police had previously been involved. He said he had a social worker. He would not be able to keep a written diary of the problems as he could not write due to his disability. The officer agreed to contact the police and the social worker. The police said they had had no involvement for over eight years. The officer spoke to Mr B again a month after the first contact. He said there were still problems. She tried to contact the police but was unsuccessful and there was then no action for two months when she again contacted Mr B. He said the situation was the same and there were still problems.
10. The officer contacted the neighbours in January 2019 and told Mr B she had done so. Mr B said that he felt matters were worsening and the property was being used for a business. The officer said she would ask the Council’s planning section to look into the use of the property. At the beginning of February the officer told Mr B that she was looking to arrange a joint visit with a planning officer and to install noise monitoring equipment in his property.
11. Two months later in April the case officer phoned Mr B. He said things were the same and she said she would chase the planning section.
12. The Council installed noise monitoring equipment at Mr B’s property for two weeks at the end of April. The Council told Mr B two months later, at the end of June, that it did not consider the noise recordings showed evidence of a statutory noise nuisance. Mr B was unhappy with that decision and a second officer considered the recordings. He agreed with the original conclusion and informed Mr B at the end of July. The Council did not hear further from Mr B so closed the complaint in August.
13. In October Mr B complained to the Ombudsman. We referred the matter back to the Council as it had not been formally considered under the Council’s complaint process. Shortly after Mr B contacted the Council again about noise issues but this time about building noise.
14. A different case officer visited the neighbours who confirmed that they were carrying out building works but they would be finished in about two weeks. The officer told Mr B. It was agreed Mr B could use the Council’s new noise monitoring app on his mobile phone. Mr B logged three noise incidents, the last being on 18 November. The Council closed the complaint on 10 December after no further contact with Mr B.
15. Following contact from us in December an officer contacted Mr B. The Council’s record of the call shows Mr B did not expect anything further from the Council and he would consider whether he would come back to the Ombudsman.
16. In February 2020 Mr B contacted the Council. He was complaining that he had not received calls back about his ongoing complaints about noise from the neighbouring property. He was unhappy with the officer he spoke to and complained about his conduct. The Council has no record of responding further with Mr B either about his ongoing concerns about noise or his complaint about the officer.

Analysis

Noise complaints

17. Mr B first complained in September 2018. There was delay in the Council dealing with it. It accepted Mr B would not be able to provide a written diary record of events but there was delay at several stages in progressing the matter.
18. However the Council did install noise monitoring equipment and two officers have considered those recordings and agree that there was not evidence of a statutory nuisance. There are no grounds to consider there was fault in that consideration.
19. The second noise complaint about building noise the Council closed without informing Mr B of that decision at the time. Because of our involvement an officer phoned Mr B. The Council’s records show that he was not expecting any further action from the Council. But by February Mr B is again reporting problems because he logs two recordings on the noise app and phones the Council. The Council appears to have taken no action in response to this.
20. There was fault in the delay in the Council’s consideration of the complaint made in September 2018 but I cannot say that made any difference to the outcome. Nor can I say the Council’s decision not to take further action about the building noise complaint was flawed. There is also fault in the handling of Mr B’s contact in February and the subsequent logs he has made through the noise app this year.

Planning enforcement

21. The Council has records of an officer visiting the site four times. Twice a card was left and an officer telephoned a business that was advertising at the site who said it was no longer operating. Officers drove past the site a number of times and saw no activity. The Council concluded there was no evidence of a breach of planning control.
22. Although the planning enforcement team provided a statement of its decision to the community protection team to be forwarded to Mr B there is no evidence to show this was sent to him. The Council has referred to its planning enforcement policy which states that where an alleged breach of planning control is intermittent they will ask the complainant to keep a written log. Here Mr B could not keep such a record because of his disabilities but there is nothing to show what the Council did to make an adjustment for Mr B. There is no evidence that planning enforcement officers had any direct contact with Mr B.
23. I consider there is fault here. The Council should have considered how it could make adjustments for Mr B so he would be able to provide evidence or information about what was happening at the property. It was also wrong that he was not told of the outcome of the investigation.
24. I do not consider Mr B has received a satisfactory response from the Council to the complaints he made. The Council should apologise to him and should also arrange for an officer to contact him to see if there are still problems. The Council should then consider what action it should take bearing in mind the adjustments Mr B needs for his disabilities.

Agreed action

25. The Council will apologise to Mr B and contact him to discuss the current situation and decide what action to take. It should do this within one month of this decision and inform the Ombudsman of the outcome.

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Final decision

26. There was fault by the Council which has caused injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman