Summary: Miss X complained the Council failed to properly investigate or take action in relation to her reports of noise nuisance from her neighbour’s new dog and loud music. Miss X also complained the Council failed to respond to her correspondence or keep her informed of the progress and outcome of court action against her neighbours. There is no evidence of fault in the way the Council investigated Miss X’s reports of dogs barking and loud music. However, the delays in responding to Miss X’s communication and the failure to keep her informed amount to fault for which the Council should apologise.

The complaint

1. The complainant, whom I shall refer to as Miss X complains the Council failed to properly investigate or take action in relation to her reports of noise nuisance from her neighbour’s new dog and loud music. Miss X also complains the Council failed to respond to her correspondence or keep her informed of the progress and outcome of court action against her neighbours.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X;
• Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory noise nuisance

5. Local councils have a legal duty under the Environmental Protection Act 1990 (EPA) to investigate complaints about potential statutory nuisances, including noise. For a noise to amount to a statutory nuisance it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or,
• injure health or be likely to injure health.
6. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise. It is ultimately a matter of professional judgement for the Council officer involved as to whether a noise constitutes a statutory nuisance.
7. If the Council finds the noise is a statutory nuisance it must take action to stop it. The Council must issue an abatement notice if it is satisfied that a statutory nuisance exists.

What happened here

Background

8. Miss X has previously made a complaint to the Ombudsman about the Council’s response to her reports of noise from her neighbour’s dog. The Council served a Community Protection Notice (CPN) on Miss X’s neighbours and then began court proceedings. A hearing was initially listed for January 2020 but was adjourned to April 2020. The court proceedings were ongoing when we concluded our previous investigation.

Current complaint

9. When the dog Miss X had previously complained about died, her neighbours got a new dog. Miss X repeatedly reported disturbance from her neighbour’s new dog barking between January and June 2020. She submitted diary sheets detailing the noise and asked officers to visit to witness the barking. A number of the reports refer to the new dog barking at or with another neighbouring dog.
10. The Council’s records show officers attempted to witness the barking in January and early February 2020. On the second occasion, Officer 1 noted a dog was heard barking very intermittently (five occasions in over an hour) when someone walked past.
11. In early May 2020 Officer 1 advised Miss X that during their recent visit it had been difficult to determine the precise location of the dogs that were barking at various properties. The barking was not persistent, and they considered there were practical difficulties in obtaining useful evidence.
12. Officer 1 visited the area again a couple of days later and was able to hear dogs barking. But was again unable to determine exactly where the dogs were located. Officer 1 advised it was difficult to make observations at present due to the pandemic. Officers were required to maintain social distancing and were avoiding entering other people’s properties for any reason where possible.
13. When Officer 1 visited the area again a couple of weeks later they advised Miss X they could not hear any barking externally.
14. Officers visited twice again in June 2020 but did not witness an audible noise from a dog on either occasion.
15. In April 2020 Miss X also complained her neighbours often played loud music at night. She asked the Council to address this. She completed diary sheets with two further incidents of loud music from her neighbour’s property in May and two more in June 2020.
16. The Council wrote to Miss X’s neighbours in June 2020 in relation to the complaints about their dog barking, the loud music and an excessive use of the washing machine.
17. In August 2020 the Council wrote to Miss X confirming it had not been able to substantiate noise disturbance caused by the new dog. It noted Miss X had not complained about the dog barking since 25 June 2020 and that it appeared the dog was no longer at the property. The Council advised it would now close this case and take no further action.
18. Miss X completed further diary sheets in September, and October 2020 in relation to loud music from her neighbour’s property. The Council opened an enforcement file on 16 September 2020 and an officer, Officer 2, attempted to witness the loud music a few days later. In October 2020 Miss X twice emailed the Council to advise her neighbours were playing loud music. Officer 2 called Miss X in response to the emails and Miss X advised a visit was not necessary as the music had now stopped.
19. The court hearing in relation to the Miss X’s neighbour’s first dog barking had been postponed due to the COVID-19 pandemic. The hearing was rearranged for September 2020, and a trial was then listed for early October 2020. The Council decided, based on legal advice to withdraw the case as it was no longer in the public interest to proceed. Miss X states she only learned of the Council’s decision after the event.
20. In October 2020 Miss X made a formal complaint to the Council about the way it had responded to her reports of dogs barking and loud music, and the lack of communication regarding the court action. Miss X acknowledged the Council had to prioritise services due to the COVID-19 pandemic but was unhappy officers had not visited to witness the noise nuisance. She had suggested Officer 1 could stand by her garden gate or in her garden to witness the noise, but they had refused. Miss X was also unhappy officers had only visited once to witness the loud music, which was not playing at the time.
21. Miss X asserted the Council’s failure to attend and obtain further evidence of barking affected the court case against her neighbours. She understood the court had recently heard the case but had not been given any details and felt excluded.
22. The Council’s response confirmed services requiring officers to visit residents in their homes had been severely affected by the COVID-19 pandemic. Since March 2020, in accordance with government advice, environmental health officers had been instructed to work from home and to minimise direct contact with customers, including visits inside homes. This had impacted on the service, particularly for visits required on the same day they are reported.
23. It noted officers had made a number of visits to Miss X’s property when they were able to and had been unable to witness any nuisance. Officer 1 denied refusing to attend on any occasion when it would have been possible.
24. The Council noted it opened a new case in September 2020 when Miss X began complaining about loud music. Officers had visited and parked nearby on several occasions but had not heard any noise attributable to Miss X’s neighbours. It confirmed the case was still open and it would continue monitoring.
25. In relation to the court case the Council advised its external legal advisors had recommended it was no longer in the public interest to proceed, given the length of time since the breach and the fact the dog had died. Officer 1 accepted this advice, and the case was dismissed.
26. Miss X was not satisfied by the Council’s response. She asserted the Council had not complied with the Ombudsman’s decision on her previous complaint in the way it had investigated her concerns. Miss X considered the Council was using the COVID 19 restrictions as an excuse for poor service. She asserted an officer had offered her recording equipment to witness the loud music weeks ago, but this had not happened.
27. Miss X also questioned why her evidence was not presented in the court case and why she was not kept informed regarding the hearing and outcome.
28. The Council set out the action it had taken to investigate Miss X’s complaints about the new dog. It also reiterated that Officer 1 had accepted legal advice to withdraw the court case relating to Miss X’s neighbour’s first dog as it was not in the public interest to proceed. The Council apologised for any delay in informing Miss X of the decision.
29. In relation to Miss X’s complaint about loud music, the Council reiterated an officer had visited in September 2020 but did not witness the noise. The officer offered to visit again following further reports from Miss X in October 2020, but Miss X confirmed the music had stopped. The Council confirmed officers would make further visits to attempt to witness the noise.
30. Miss X remains unhappy and has asked the Ombudsman to investigate. She states she no longer reports the loud music to the Council as it has not done anything to assist her.
31. In response to my enquiries the Council states there were no site visits between 18 March and 22 June 2020 due to the COVID-19 restrictions. Officers made external visits during this period but, due to the layout of the site, they were not effective in determining where the dog was located. The Council states it was not practical to stand outside a property to make observations.
32. The Council states the events of barking and loud music were often of short duration and outside normal working hours. The Council does not have an established out of hours service.
33. It states it informed Miss X as much as possible of the progress of the court action. The hearing scheduled for April 2020 was affected by the COVID-19 restrictions and the case was finally heard in September 2020. The Council states it had no direct contact from the court service and it was not told whether officers or witnesses were required at the initial hearing in September 2020. Following the initial hearing, the Council’s legal advisors recommended offering no evidence, having regard to the public interest test. The Council states that when Officer 1 obtained information on the proceedings, they informed Miss X.

Analysis

34. It is unfortunate that the Council was not able to visit Miss X’s property due to the COVID-19 restrictions. But the Council made repeated attempted to witness the dog barking from outside, including observations from Miss X‘s garden when this was possible in June 2020. Miss X’s diary sheets do not suggest a pattern to the barking, or an optimal time for officers to witness the barking. But rather that the barking could occur at intervals from early morning to late in the evening.
35. Miss X’s diary sheets refer to her neighbour’s dog barking at other dogs in the area. When Officer 1 did hear dogs barking they were unable to establish the dogs’ locations. As the Council had not witnessed barking which amounted to a statutory nuisance or been able to identify the source of any nuisance it was unable to take any action. I recognise this is frustrating for Miss X who had been disturbed by the barking and had spent time compiling diary sheets, but given the restrictions in place, there is no evidence of fault in the way the Council investigated to reports of dogs barking.
36. Miss X has also complained about her neighbours playing loud music and the volume of their television. The Council wrote to Miss X’s neighbours about the loud music in June 2020, which appears to have temporarily resolved the problem. Miss X did not report any incidents of loud music again until September 2020. In response to these further reports, the Council opened a new case and attempted to witness the music. The Council was unable to witness the loud music but confirmed it would make further attempts. However, Miss X has lost faith in the Council’s ability to resolve the matter and no longer reports incidents of loud music. Miss X also states the situation had improved and the music was quieter.
37. There is no evidence of fault in the way the Council investigated Miss X’s reports of loud music.
38. Miss X is disappointed the Council did not proceed with the court action against her neighbours. It is again unfortunate that COVID-19 restrictions also impacted these proceedings, and the hearings were delayed. The Council’s records show it contacted the court to try and clarify when the hearing listed for April 202 would be relisted. The court confirmed in June 2020 an initial hearing had been listed for September 2020. Officer 1 kept Miss X informed of their contact with the court.
39. Given the passage of time since the alleged breach of the CPN and the fact the dog had died, it was appropriate for the Council to review whether it was still in the public interest to proceed. The Council accepted legal advice to withdraw/ not to offer any evidence at the final hearing in October 2020. This is a decision the Council was entitled to take. However, having made this decision I would expect the Council to inform Miss X of its intentions. There is no evidence the Council informed Miss X prior to the hearing date that the case would not proceed, or that it advised her of the outcome of the hearing in a timely manner.
40. The documentation provided shows Miss X repeatedly called and emailed Officer 1 regarding the court case, dogs barking, the loud music. Miss X’s emails frequently request responses to earlier emails and refer to difficulties in contacting Officer 1 by telephone.
41. The information provided by the Council is incomplete and does not include Officer 1’s emails prior to April 2020 or records of any conversations referred to in the emails. The Council states telephone responses were affected by the pandemic as officers were working remotely and contact was not always as effective, with some call being missed or not recorded.
42. While I recognise the difficulties posed by the pandemic, it is clear the Council did not respond to all of Miss X’s communication and queries in a timely manner. The Council has noted that Miss X sent over 80 emails during the lockdown. Given this volume it may well not have been practical or proportionate to respond to every email. But I would expect the Council to respond holistically and to keep Miss X informed of the progress of its investigations and the court proceedings. I consider the delays in responding to Miss X’s communication and failure to keep her informed amounts to fault, for which the Council should apologise.

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Agreed action

43. The Council has agreed to apologise to Miss X for the delays in responding to her communication and the failure to keep her informed.
44. The Council should take this action within one month of the final decision on this complaint.

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Final decision

45. There is no evidence of fault in the way the Council investigated Miss X’s reports of dogs barking and loud music. However, the delays in responding to Miss X’s communication and the failure to keep her informed amount to fault for which the Council should apologise.

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Investigator's decision on behalf of the Ombudsman