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Trafford Council (20 002 414)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 19 Nov 2021

The Ombudsman's final decision:

Summary: the complainant Mr X complained the Council did not deliver on a commitment to issue enforcement action or properly investigate complaints of noise nuisance and anti-social behaviour. The Council says it investigated the complaints but considered the noise did not meet the threshold of statutory noise nuisance. In its view the neighbour did not deliberately cause the noise to cause distress and so did not meet the threshold for anti-social behaviour. We found the Council acted with fault.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains the Council failed to properly consider exercising its powers to control anti-social behaviour and statutory noise nuisance. Mr X says officers did not follow through with action they had promised to take or respond with detailed or timely responses to his complaints.
  2. Mr X says the Council breached data protection rules by sharing information on its investigation with someone known to the alleged perpetrators of the noise nuisance who later became an elected councillor.
  3. These failings Mr X says have resulted in persistent noise nuisance through noise transference between his neighbour’s property and his own creating significant problems for his family. Mr X said one member had to leave home to study for examinations and family members have received verbal threats.
  4. Mr X wants the Council to recognise it failed to respond properly to the concerns and to improve procedures so other families do not suffer a similar experience.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 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. In considering this complaint I have:
    • Spoken with Mr X and read the information presented with his complaint;
    • Put enquiries to the Council and reviewed its response;
    • Reviewed relevant law, guidance, and policy.
  2. I shared with Mr X and the Council my draft decision and have reflected on comments received before reaching this my final decision.

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What I found

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances.’
  2. 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.
  3. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-recording equipment, or undertake site visits.
  4. Once they complete their evidence gathering, the environmental health officers assess the evidence. They consider the timing, duration, and intensity of the alleged nuisance. The officers use their professional judgement to decide whether a statutory nuisance exists.
  5. If satisfied a statutory nuisance exists, has happened, or will happen in the future, the Council must serve an abatement notice.
  6. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court accepts, they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This procedure does not involve the council, but we consider it good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the EPA.
  7. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation. For example, they may approach a complaint:
    • As an environmental protection issue where a complaint is about noise, or;
    • Using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.
  8. If unhappy with the action taken by the Police, Council, and other agencies in response to complaints of Anti-Social Behaviour, a complainant may ask for a Review, known as the Community Trigger. The aim is to find a solution to the issue in a partnership led approach.

What happened

  1. Mr and Mrs X live in a terraced home. In May 2019 a family moved in which Mr and Mrs X say resulted in a dramatic increase in noise nuisance. In September 2019 they wrote to the Council complaining they experienced continual noise from their neighbour. The neighbour allowed family members to bang about the house and staircase throughout the day and late into the evening. Mr X says the noise became intolerable especially when it continued after 10.00pm until 1.00am. Sometimes even later. This affected his family’s sleep patterns and harmed their enjoyment of their home. Mr X told the Council he believed the noise resulted from malicious intent, therefore meeting the threshold of anti-social behaviour and he had contacted the Police.
  2. The Council’s enforcement procedure, published online, guides how it responds to noise complaints. The Council asked Mr X to keep a diary of the noise and share that with the Council. It also installed noise recording equipment on four occasions to gather evidence. The Council analyses recordings by using computer software and by officers listening to recordings.
  3. A temporary Council officer responded to Mr X’s complaint of anti-social behaviour. The temporary Council officer told Mr X the Council would get the landlord to fit carpets to reduce the noise to acceptable normal family living noises. The Council says this set out unachievable aims because the Council has no power to demand such action. In commenting on my draft decision Mr X disputes this saying case law allows the Council to require floor covering to reduce noise nuisance.
  4. The Council liaised with the neighbour’s letting agent. The Council persuaded the letting agent to contact the landlord and ask them to fit carpets. The landlord agreed but the tenant refused to allow the landlord to fit the carpets. The letting agency served notice on the tenants but they could not leave when intended due to the Covid-19 lockdown. Following further complaints, the letting agency offered a temporary move to another home which the tenants accepted. The Council recognises its officer went beyond the scope of their powers by intervening in this way, raising expectations about what it could do.
  5. The Council’s environmental protection team reviewed the noise diary presented by Mr X and installed its noise monitoring equipment on four occasions. Officers say none of the recordings undertaken between November and December 2019 showed a statutory noise nuisance. Mr X installed his own cameras with audio recording and shared recordings with the Council. On one occasion the Council says these recordings showed an incident that met the threshold of potential statutory nuisance. However, considering it represented only one example the Council says the lack of other evidence meant it could not issue a formal notice.
  6. Mr X asked the Council to share its recordings with him so he could share them with an independent expert he had commissioned to help him. The Council refused to share the recordings. The Council believes the noise recordings taken by its machine remain the property of the Council and it keeps them for possible use in court. It says it cannot release them to Mr X. Mr X told the Council the recordings took place in his property therefore they could not legally be withheld. Mr X has shared the recordings he has taken using other equipment with his expert who says in their professional opinion the noise meets the threshold of statutory nuisance.
  7. In responding to my enquiries and to Mr X’s complaint, the Council says the houses built in the Victorian era do not meet today’s standards for preventing noise transference between homes. That however, the Council says does not mean it has power to issue a notice against the neighbour for noise transference. It may only issue a notice if it believes the noise crosses the threshold of statutory noise nuisance.
  8. Following the tenants’ departure, the Council considered the case closed. The anti-social behaviour team say it did not have any evidence the neighbour caused the noise deliberately. Therefore, the action did not meet the threshold for using their powers under the Anti-social Behaviour and Crime Act.
  9. Mr X asked for a community review of the lack of action. As the Council had been lead authority in the case it referred the request to the Police to chair a community review.
  10. The reviewer found the Council had visited Mr X and his neighbour’s home. They tried unsuccessfully through the letting agency to encourage the neighbours to fit carpets to reduce noise and offered noise recording equipment. The Police declined to act because the threshold for their involvement had not been met. Contractors who Mr X said had witnessed the nuisance did not respond to the reviewer or Council’s request for information. The reviewer decided the Council took all reasonable action to investigate the noise but found it did not cross the threshold of noise nuisance.

Analysis – was there fault leading to injustice?

  1. My role is to decide if the Council properly considered the exercise of its anti-social behaviour, and environmental protection powers. It is not to decide if there was a statutory noise nuisance or what formal action, if any, the Council should take. If I find fault, I must consider what the Council should do to address the impact of that fault.
  2. The Council’s temporary officer took steps to remove the disturbance to Mr X by liaising with the letting agent who served notice on the tenant. The Council committed itself to doing more than its powers allowed. I find it acted with fault wrongly and avoidably raising Mr X’s expectations of formal action.
  3. In deciding if a statutory nuisance had occurred the Council reviewed the evidence presented in the noise diary and recordings. It also considered the view expressed by Mr X and his expert. However, the professional view remained the disturbance even late into the evening did not meet the threshold of a statutory nuisance. The Council agrees carpeting would help reduce noise but says in the officer’s professional judgement, the noise is ordinary living noises and therefore unlikely to be statutory noise nuisance. That is a matter of professional judgement. The officers had before them all relevant information when reaching their view so I cannot challenge it.
  4. The Council says it refused to investigate further complaints about the original tenants which appeared to be about the same noises but would investigate a complaint of noise from new tenants. Mr X says the tenants who followed the original tenants were less noisy, but still caused a nuisance. The current, most recent tenants Mr X says cause no problem at all. This, Mr X says shows what his family experienced before is likely to have met the threshold of statutory noise nuisance.
  5. Noise transference between properties linked as terraces may be unavoidable. It may not always meet the threshold of a statutory nuisance. Whether it does is a matter of professional judgement exercised by the officer concerned. I cannot impose my judgement over that of the professional officer.
  6. The Council made recordings to help officers reach a professional view and to provide evidence for the court if they decided to issue a notice. Only the courts can decide if Mr X has a legal right to copies of the recordings.
  7. The Council rightly invited the Police to review its actions under the Community Trigger procedure because the Council had been the lead authority. The witnesses put forward by Mr X did not provide information the Reviewer felt challenged the Council’s view and so decided the Council had acted properly. I find no fault in the Council inviting the Police to conduct the review.
  8. A councillor’s voluntary helper knew the neighbours who moved next to Mr X in May 2019. That voluntary helper then became a councillor. He knew of the complaint from the former neighbours. The Council did not share with him any information about the complaint before or after his election to the Council. I have no evidence the councillor had access to the recordings or other information about the complaint.

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Agreed action

  1. To address the avoidable raising of Mr X’s expectations of further action including against subsequent tenants the Council has agreed to my recommendation that within four weeks of my final decision the Council will:
    • Apologise to Mr X;
    • Pay Mr X £200 in recognition of avoidably raising his expectations and putting him to time and inconvenience in pursuing the complaint;
    • Invite Mr X to present diary sheets giving details of when he experiences what he believes is statutory noise nuisance from his neighbours.

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Final decision

  1. In completing my investigation, I find the Council acted with fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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