Summary: Miss X complained about how the Council dealt with her reports of anti-social behaviour near her home. There was fault in how the Council failed to properly consider some of its powers and failed to tell Miss X about the anti-social behaviour case review process. The Council agreed to apologise and process a case review application on Miss X’s behalf.

The complaint

1. Miss X complains about how the Council has responded to her reports of anti-social behaviour and planning control issues since it granted planning permission for conversion of a building near her home in 2013. She says the building is currently used in a way which attracts anti-social behaviour and noise problems, and is not allowed under planning rules.
2. As a result, Miss X says that she does not feel safe or comfortable in and around her home, which has caused her significant distress. She wants the Council to take action to prevent the anti-social behaviour.

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What I have and have not investigated

3. I have investigated the Council’s actions related to Miss X’s complaint from July 2020 onwards.
4. I have not investigated events before this because Miss X’s complaint about earlier events is late.
5. 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)
6. Miss X complained to the Ombudsman in July 2021, so her complaint about events more than 12 months before this are late. I am satisfied that Miss X knew about these earlier events before July 2021 and could have reasonably complained about them sooner. There are no good reasons to consider these earlier events now.

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The Ombudsman’s role and powers

7. 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)
8. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. 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)
11. We cannot investigate a complaint if it is about action taken by or on behalf of any local policing body in connection with the investigation or prevention of crime. (Local Government Act 1974, Schedule 5, Section 26, paragraph 2 as amended)
12. If we are satisfied with an organisation’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

13. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and council policy.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Anti-social behaviour

15. 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.
16. For example, they may approach a complaint:
• as an environmental health issue, where the complaint is about noise or pollution;
• as a planning matter, where the complaint is about an inappropriate use of a building or facility;
• as a licensing matter, where the complaint is about a licensed premises, such as a pub or nightclub;
• as part of their duties as a social landlord, where the alleged perpetrator is a council tenant (although we are unable to investigate the council’s actions as a social landlord); or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.
17. The 2014 Act introduced six new powers for agencies involved in tackling ASB. These are:
• the power to issue community protection notices (CPN);
• the power to make a public spaces protection order (PSPO);
• the power to close premises for a specified period of time;
• a civil injunction (a court order, which can be made upon application by the local authority or other agencies);
• a criminal behaviour order (a court order made following a conviction); and
• the power for the police to disperse people from a specified area.
  Community Protection Notices
18. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence, and may result in a fine or a fixed penalty notice.
19. The Anti-social Behaviour, Crime and Policing Act 2014 introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is commonly known as the ‘Community Trigger’ process. When a person requests a review, relevant bodies (which may include the council, police and others) should decide whether the local threshold has been met.
20. If the threshold has been met, the relevant bodies should undertake the review. They should share information, consider what action has already been taken, decide whether more should be done, and then inform the complainant of the outcome. If they decide to take more action, they should create an action plan. It is for relevant local bodies to agree their review threshold, but the ASB statutory guidance says this should be, at a maximum, that a complainant has made three reports of ASB within six months.
21. We can only consider councils’ actions in an ASB case review. Any contribution made by other relevant bodies, such as the police, is not in our jurisdiction.

Noise nuisance

22. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
23. Typical things which may be a statutory nuisance include noise from premises or vehicles, equipment or machinery in the street, and accumulation of deposits on premises.
24. 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.
25. 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.
26. 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.
27. 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.

Use of land and planning enforcement

28. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
29. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’.
30. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
31. Councils can take enforcement action if they find planning rules have been breached. As part of an investigation into a possible breach of planning permission, councils need to first consider whether there has been a breach of the permission or any conditions.

Background

32. Miss X’s complaint is about a property near her home. In 2013, the Council approved planning permission to convert the property from commercial use into individual flats.
33. Several years later, all the flats were bought by a company and are currently used to provide self-contained, supported living accommodation for young people.
34. Miss X complained to the Council about what she believed was an unauthorised change of use of the property. The Council investigated Miss X’s first complaint about this in 2019, deciding in October 2019 that there had been no breach of planning rules.

My findings

35. It is not our role to decide if there is a statutory nuisance or what action a Council should take to deal with anti-social behaviour; that is the Council’s responsibility. Our role is to assess whether the Council made its decisions properly. We cannot question a decision the Council made, or the professional judgement of its officers, if it followed the right steps and considered relevant evidence.
36. The Council approached Miss X’s reports of ASB using several different sets of powers including:
• as a possible statutory nuisance;
• as a planning issue; and
• using its wider ASB powers.
37. I have considered each part of the Council’s investigation separately below for clarity. However, I am satisfied the different Council teams involved coordinated their efforts and shared information well during their investigations.

Noise nuisance

38. Miss X reported issues with noise from the property in June 2021. In early July 2021, an environmental health officer (EHC) started an investigation into Miss X’s concerns. The evidence shows the EHO:
• wrote to the owner of the building asking them to control any noise from the property;
• asked Miss X to complete diary sheets of noise and other incidents; and
• met with the Council’s community safety team and local police (which agreed to review CCTV from the property and arrange a drop-in session for local residents).
39. Miss X shared further diary sheets with the EHCO, community safety and the police. Community safety reported that CCTV from the property showed no sign of residents of the property at the times noise and other anti-social behaviour was reported by Miss X.
40. Following further diary sheets a few days later, the Council offered to install noise monitoring equipment in Miss X’s property to gather evidence of any noise. The Council originally arranged to install the equipment in early August 2021, but Miss C told the Council the noise had improved since the police contacted the property manager, so she did not want the equipment at the time.
41. Around a week later, Miss X asked the Council to install the noise monitoring equipment. However, the Council’s equipment was being calibrated so the Council asked Miss X to keep more diary sheets until the equipment was available.
42. Between November 2021 and May 2022, the Council installed noise monitoring equipment in Miss X’s property three times, for around a week each time. Each time the equipment either did not record any notable noise, or the EHO decided that the noise recorded was not a statutory nuisance. Despite this, the EHO wrote to the property manager again asking them to ensure any noise from the property was controlled.
43. The evidence shows the Council carried out its investigation into Miss X’s reports of noise in the way we would expect. It gathered evidence, both from Miss X and through noise monitoring equipment. It then considered that evidence to assess the scale of the problem before deciding whether there was a statutory nuisance and what action it could take. When the Council decided there was not a statutory nuisance and it could not take any formal action, it still took informal action.
44. I appreciate Miss X disagrees with the Council’s decision that there was not a statutory nuisance. However, we cannot question the professional judgement of decisions made without fault.

Planning investigation

45. The Council re-opened its 2019 planning enforcement investigation in November 2021.
46. As part of this re-investigation the Council contacted both the owner and operator the of premises to gather information about how the individual flats were being used. It also checked how the flats were treated for council tax purposes.
47. The Council sought legal advice about whether the current use of the buildings was in line with conditions of the approved planning permission, including the approved change of use.
48. Based on the evidence and legal advice it had gathered the Council decided that the current use of the premises was allowed under the planning permission and therefore there was no breach of planning control.
49. The evidence shows the Council carried out this investigation in the way we would expect. Although there was a delay between November 2021 and January 2022 due to officer absence, I am satisfied this delay did not cause any injustice since the Council kept Miss X informed about the progress of its investigation.

Anti-social behaviour

50. From February 2022 the Council shifted the focus of its investigation to its Community Safety team, after it had decided there was no statutory nuisance and Miss X reported more forms of ASB associated with the property.
51. The Council arranged a multi-agency meeting, including its community safety, planning and environmental health teams and the police in March 2022. The police reported that instances of ASB from the property depended on the individual residents at a given time. The community safety team and the police discussed issues with the manager of the property on several occasions and agreed changes to hopefully improve the situation.
52. The Council’s social care team also became involved, since they had contact with some of the residents at the property. They met with the manager of the property and offered support to try to reduce problems with some residents. As part of this, the Council agreed a joint letter from the Council’s social care team and the manager of the property which was circulated to nearby residents by the manager.
53. After a further joint meeting with the property manager in May 2022, the Council said it was satisfied that the manager was willing to work with the Council and police to improve the situation. It confirmed to Miss X the action it had taken and that it had not closed its case since the situation was ongoing.
54. Councils can decide whether to take formal or informal action about ASB. However, as part of this we would expect councils to give careful consideration to the legal options available to them. This does not mean that councils must use the powers they have, just that they should make sure these are considered.
55. The Council says it did consider whether its formal powers were appropriate and decided they were not. However, there is no evidence did this. Given the longstanding issues Miss X complained about, I am satisfied the Council should have considered its formal ASB powers and properly recorded its consideration of these. The failure to either consider its powers or keep adequate records of its decision making was fault.
56. The Council also failed to tell Miss X about the ASB case review process, even when responding to her complaint. Given the number of reports that Miss X had made about ASB and that she was complaining that the Council had not done enough to deal with the problem, I would have expected the Council to direct Miss X to the process.
57. Where we find fault with how a Council makes a decision, we usually recommend that the Council review its decision. In this case, given that Miss X has already been through the Council’s complaints procedure, the Council should offer to process an application for an ASB case review, if Miss X wishes to make one. That procedure can consider whether the Council’s response has been adequate.

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Agreed action

58. Within one month of my final decision the Council will:
• apologise to Miss X for not telling her about the ASB case review process;
• give Miss X details of the case review process; and
• process an application for an ASB case review for Miss X if she wishes to make one.
59. Within three months of my final decision the Council will remind relevant staff in its planning, environmental health, community safety and complaints teams about the ASB case review process and that they should direct complainants to the process where it might apply.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation. There was fault in how the Council failed to properly consider some of its powers and failed to tell Miss X about the anti-social behaviour case review process. The Council agreed to apologise and process a case review application on Miss X’s behalf.

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Investigator's decision on behalf of the Ombudsman