Summary: There is no fault in the Council’s policy for investigating reports of noise nuisance and anti-social behaviour. For this reason, we have completed our investigation.

The complaint

1. I will refer to the complainant as Ms C.
2. Ms C complains the Council’s procedures for investigating reports of noise nuisance and anti-social behaviour are unsatisfactory.

Back to top

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.
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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

Back to top

How I considered this complaint

7. I reviewed Ms C’s correspondence with the Council, notes and records provided by the Council, and its environmental health and licensing enforcement policy.
8. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

9. Ms C says she and other residents of her area have suffered noise nuisance and anti-social behaviour (ASB) over a number of years. She says the nuisance and ASB have been caused by the residents of two particular properties, to which I will refer as Property A and Property B.
10. Ms C says she made a complaint about the issues with Property A to the Council in 2018. Although she completed a noise diary and made recordings of the nuisance at the Council’s request, it then did nothing to resolve the problem.
11. Then, in the Summer of 2020, a similar problem arose from Property B. The Council received complaints from several residents, including Ms C, that the occupants held frequent parties late into night, with loud music and unruly behaviour. Ms C says this prevented her and other residents, including children, from sleeping.
12. The Council wrote a letter to the occupants of Property B on 7 August, highlighting the impact their behaviour was having on their neighbours. It asked the occupants to call the Council if they were unsure what was considered acceptable behaviour, and warned them what steps it might take if further investigation was needed. The Council also highlighted the social distancing rules which were in force at the time.
13. The Council also says it has not received any further reports of nuisance or ASB from Property B since 25 July, before it wrote this letter. It therefore currently has no open investigation.
14. Ms C had submitted a formal complaint to the Council on 20 July. She said there had been frequent problems with parties from Property A over recent years. Residents had contacted the police, who had refused to assist, and also the Council, which had said it could not help because there was no evidence the problem was coming from Property A. Ms C said at least two residents had moved away because of this.
15. Ms C then raised the more recent issues with Property B. She referred to one party in particular, which she said she believed had been reported to the police, and the effect this had had on residents. Ms C highlighted the Council’s environmental health function but said the Council “appear[ed] to have a lack of acknowledgement for this”.
16. The Council responded on 13 August.
17. It first explained it could not address Ms C’s comments about the police. It then provided an overview of nuisance legislation, and how officers worked to the Environmental Protection Act 1990 (‘EPA’) in determining whether there was nuisance. It said asking complainants to complete a diary was a normal part of this process.
18. The Council said it had made contact with the occupants of Property A after receiving Ms C’s diary in 2018. It had then closed the case in September 2018 because it had not received any further complaints. The Council said it was satisfied it had followed the appropriate procedures.
19. With regard to the more recent complaints about Property B, the Council said there was an ongoing investigation and so it could provide a detailed response. It said it had again considered the diary submitted by Ms C, and had written to the occupants to ask they consider their behaviour and contact the Council to discuss it.
20. The Council referred to a recent exchange of emails it had had with Ms C. In the course of this conversation, the Council had said Property B was holding parties approximately twice per month. It acknowledged there had in fact been three reported parties in July, and apologised for this.
21. The Council said it did not have a specific noise nuisance investigation policy, but directed to Ms C to its published general enforcement policy. It also explained that it was its professional view that a frequency of two parties per month was not necessarily unreasonable, and that, in this case, it was the volume, rather than the frequency, of the noise which it was investigating as potentially unreasonable.
22. The Council said it would update Ms C on the investigation into Property B in due course. It said it had received a total of 223 noise complaints in 2019, but had only a limited number of trained officers to deal with them. For this reason, it was necessary to operate a standardised process, in common with other local authorities.
23. Ms C submitted a stage 2 complaint on 14 August. She said:

• the Council had not addressed the issue she had raised about its out-of-hours service. She complained the service was simply for monitoring, and not reactive. She also said the Council did not have a full record of the complaints it had received from residents;
• it had not addressed “the issue regarding the procedures and escalation process for noise reporting with any time-scale”;
• she acknowledged the Council could not address a complaint about the police, and said she had mentioned this simply to highlight the Council’s responsibilities;
• the Council’s enforcement policy did not include any timescales for action, nor had it given any timescale for when it would take further action against Property B;
• the definitions of contraventions in the policy were unclear and open to interpretation;
• the Council had offered noise monitoring equipment to Ms C as part of the investigation into Property A in 2018, and although she had accepted the offer the Council had not implemented this. This was because the Council had accepted Property A had not been responsible for the noise;
• other local authorities’ noise nuisance policies provided clearer guidance than the Council’s.

24. The Council replied on 24 September. It said:

• it was satisfied the stage 1 response was appropriate. It illustrated the Council had taken informal action over Property A, and had closed the case after receiving no further complaints;
• the responding officer had set out his professional view about the issue with Property B, and the Council had no reason to challenge this. The Council noted again there was an ongoing investigation about Property B;
• it apologised Ms C was dissatisfied with its out-of-hours facility, but confirmed the Council did not offer a reactive service for out-of-hours noise nuisance. The Council acknowledged some other local authorities did offer such a service;
• it could not comment on Ms C’s allegation it had not recorded all noise complaints without specific evidence. The Council explained how it processed complaints, and said its contact centre passed a record of calls to the environmental health team, which would decide how to respond;
• it was always keen to improve its services, and would look to review the information available to complainants as part of its upcoming regular review;
• the Council noted Ms C’s complaint about noise monitoring equipment during the 2018 investigation. However, there were different ways for officers to gather evidence, and in this instance, the officer had been satisfied with the submitted diaries and recordings from the Council’s Noise App, and had written to Property A on this basis;
• the Council thanked Ms C for her diary submissions for Property B from June and July. It noted she had not submitting any further evidence since then and encouraged her to do so if she had any;
• it was not appropriate for the Council’s enforcement policy to include timescales. Each case was different and its service would not benefit from a prescriptive policy. The Council was satisfied its policy was fit for purpose;
• the Council took guidance from the courts in determining when it was appropriate to consider there had been non-compliance with a warning or formal notice;
• the Council accepted Ms C was frustrated that investigations could be drawn out, but this was because of the potential consequences of finding a statutory nuisance, and the fact such a decision might need to stand up in court;
• the Council explained section 82 of the EPA allowed Ms C to take her own action against a nuisance in the Magistrates’ Court, if she wished.

25. Ms C referred her complaint to the Ombudsman on 28 September.
26. Separately, Ms C submitted a petition signed by residents, raising similar issues about the Council’s noise nuisance procedures. The Council replied on 16 October, explaining again:

• the Council had a duty to take reasonable steps to investigate noise nuisance. If it found a statutory nuisance, it was required to serve an abatement notice;
• the decision was based on a range of factors, including frequency and duration, reasonableness, and the impact it had on others;
• it would typically ask for written details of the nuisance. It was important this evidence was strong enough to be used as evidence in court, if necessary;
• the Council could use noise monitoring equipment, or ask complainants to use its Noise App, where it was difficult for officers to attend to witness the nuisance. The Council also collated evidence through its out-of-hours reporting service;
• the Council did not offer a 24/7 noise patrol service. Some other authorities offer a limited weekend service, typically those in inner cities or university areas;
• the Council accepted the evidence gathering process could be frustrating, but reiterated this was necessary to ensure its decision was robust;
• the Council’s noise reporting procedures were the same as those used by most other English local authorities.

27. On 16 November, Ms C submitted a further complaint to the Ombudsman about the Council’s response to the petition, which she described as “cursory”. She also complained the Council had said it would not correspond any further on this.

Back to top

Legislative background

Statutory nuisances

28. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
29. 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

30. 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.

31. 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.
32. 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.
33. 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.

Abatement notices

34. 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.
35. 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.
36. 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.

Section 82 of the EPA

37. 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.

Back to top

Analysis

38. The Ombudsman’s role in investigating complaints is to review the relevant authority’s adherence to procedure in making decisions. We ensure the authority has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision. If it has done this, we will generally not criticise it. We cannot make decisions on the authority’s behalf, and we do not provide a right of appeal to those who disagree with decisions the authority has made.
39. Ms C’s complaint refers to noise nuisance and ASB from two separate properties, A and B. However, the focus of her complaint to the Ombudsman is what she considers to be flaws in the Council’s enforcement policy. I will comment first on the Council’s investigations into Properties A and B, before turning my attention to Ms C’s complaints about the policy.
40. The complaint about Property A relates to events in 2018. Ms C says the Council did not act upon the evidence she provided. The Council rejects this allegation, and says it contacted the occupants, then closed the case in September 2018 after it stopped receiving complaints.
41. The law says a person should approach the Ombudsman within 12 months of becoming aware of the substantive issue they wish to complain about. We can disapply this rule, but only where we are satisfied there are good reasons for a delay, and where it is still possible to carry out a robust investigation.
42. Ms C complained to the Council about Property A in 2018, and so it is self-evident she was aware of the problem then. However, she did not approach the Ombudsman with her complaint until September 2020. She has not given any reason for this delay. For this reason, I am satisfied this element of her complaint is late, and that I have no grounds to disapply the legal time limit. I will therefore not consider this point any further.
43. With regard to Property B, Ms C approached her MP in June 2020. She complained about the noise and ASB from regular parties at this property, which she said had been ongoing for approximately a year. She also told her MP the Council had previously investigated a complaint from her in 2018, but had, in her view, failed to take action (I note she said this complaint was about Property B, rather than Property A, which appears to be an error).
44. The MP referred Ms C’s complaint to the Council and police. The Council asked Ms C to complete a diary, which she did, including some retrospective entries over the previous year. Ms C then submitted her diary on 20 July. The Council wrote to Property B on 7 August, cautioning the occupants about their behaviour and asking them to be considerate. However, the Council says it had already stopped receiving complaints from residents about Property B before that point, and has not received any more since then, so it has closed its investigation.
45. I see nothing to criticise the Council for here. I note Ms C says the problem had been ongoing for a year by then, but there is nothing to show the Council was made aware of it until Summer 2020. It then gathered evidence, considered this, and decided the appropriate next step was to write an informal warning letter to the occupants. This is a decision it was entitled to make. The Council was also entitled to decide the close the case, without taking any further action, because it had stopped receiving complaints from residents.
46. It is not clear to me whether Ms C considers the nuisance and ASB from Property B is continuing. If so, she should report this to the Council. I would then expect the Council to investigate further and consider taking more robust action, if appropriate.
47. However, I find no evidence of fault here.
48. I will now turn to Ms C’s general points about the Council’s policy.
49. Ms C complains the policy does not include any timescales for when the Council will take action over noise and ASB.
50. I acknowledge those who submit complaints about nuisance or ASB will generally wish to know how long the investigation should take. This is particularly so when the problem is having a significant effect on their quality of life.
51. Unfortunately, establishing there is (for example) a statutory nuisance is often not a straightforward matter. It is not simply a case of measuring the volume of the noise; officers must also consider the duration, frequency, timing, and the actual effect it has on neighbouring properties.
52. And, if they are minded to take formal enforcement action, officers must ensure the evidence they have collated is sufficiently robust to withstand scrutiny by a court. This is because a person served with an abatement notice has the right to appeal it. For these reasons, the investigation process can become drawn out.
53. This being the case, I share the Council’s view it would not be beneficial for its policy to lay down timescales for action. In fact, it is quite possible this would be counter-productive, as it may encourage officers to rush their work to meet the deadline, potentially to its detriment.
54. This is not to say the Ombudsman would never find fault with a local authority for the length of time it had taken to investigate a reported nuisance. But we can decide only on a case-by-case basis whether there has been an unreasonable delay, taking account of each particular set of circumstances. There is no absolute, universal target date for an investigation to be completed.
55. Ms C complains the Council’s policy does not give clear examples of “contraventions”. By this, I understand she means behaviour or actions by parties responsible for alleged nuisance or ASB, which the Council would consider to be a trigger for formal action, such as non-compliance with an informal warning letter.
56. I note the Council does not have a specific policy for statutory nuisances or ASB. Rather, it has a general enforcement policy for all environmental health and licensing matters. Because of this, the policy does not give a detailed account of (for example) the Council’s powers and procedures for dealing with potential statutory nuisances.
57. I acknowledge it may be better if the Council had a range of specific policies to cover different types of enforcement work, if only to give complainants a better idea of how the Council might approach each one. However, equally, there is no rule which requires the Council to have specific, individual policies. And I do not consider there is anything critical missing from the Council’s general policy which would amount to fault.
58. Even if I could criticise the Council for not having more specific policies, however, I still would not find fault if they did not contain specific examples of where it would or would not take action. This is, again, because each case is different, and there are no set standards for what constitutes a statutory nuisance or unacceptable ASB.
59. If the Council were to decide a noise amounted to a statutory nuisance, it would then have a duty to serve an abatement notice. The notice should explain what action the recipient must take, or what they must stop doing, and a timescale in which they must comply. At this point, there would be a formal benchmark for the Council to decide non-compliance, in the way Ms C appears to seek – but this would only be possible once the Council had decided to take action, and it would only apply to that particular case.
60. Ms C complains the Council does not operate a reactive out-of-hours service. Rather, its contact centre accepts out-of-hours reports as a form of monitoring, to be passed to the appropriate team and addressed during normal working hours.
61. I acknowledge why those suffering possible nuisance or ASB would prefer an immediate substantive response to their reports, even during the night or at weekends. However, and while some local authorities do provide such a service, this is not a legal requirement, and it is also common for local authorities not to offer a reactive out-of-hours service. The Council is entitled to decide how to deploy its resources, and it is not fault for it to operate in this way.
62. Ms C has made a separate complaint to the Ombudsman, that the Council did not properly respond to the petition she and other residents submitted. As the petition covers the same substantive points as her original complaint, we have merged the two rather than dealing with them separately.
63. I am satisfied with the Council’s response to the petition. I do not agree it is ‘cursory’, as Ms C has alleged, as it gives a detailed explanation of the Council’s duties and why it operates its service in the way it does. This is precisely the response I would expect to see.
64. Ms C also complains the Council has now refused to correspond any further on this matter. The Council has the right to decline to engage in further correspondence about closed complaints, and indeed, the Ombudsman operates a similar policy. I am satisfied the Council has responded appropriately to Ms C’s complaints, and the petition, and so I consider it is entitled to consider the matter closed.

Back to top

Final decision

65. I have completed my investigation with a finding of no fault.

Back to top

Investigator's decision on behalf of the Ombudsman