Summary: The complainant, Mrs X, complained about how the Council has managed her noise complaint and about the Council’s poor complaints responses. We find the Council was at fault for the delay in dealing with her complaint and lack of communication. This caused Mrs X significant stress. To address the injustice caused by fault, the Council has agreed to apologies and make a symbolic payment.

The complaint

1. The complainant, Mrs X, complains about how the Council has managed her noise complaint and about the Council’s poor complaints responses. She said this has caused her significant stress.

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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 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

4. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

Noise nuisance

6. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Noise can amount to a statutory nuisance.
7. 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.
8. There is a long-established legal principle that ‘nuisance’ must be judged on how it affects the average person, not someone who, for whatever reason, is particularly sensitive to it. Officers should always therefore consider whether the issue would amount to a nuisance to the ‘average’ person.
9. 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.
10. 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.
11. 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.
12. Councils have powers of enforcement under the EPA, which can involve the Magistrates Court. So, if a council serves a notice asking someone to abate a nuisance that person can appeal the notice to the Magistrates Court. Or, in cases where a council believes prosecution is the only way to stop a nuisance that will also involve court proceedings, giving rights of defence. For that reason, a council must gather evidence that will persuade a court the action is proportionate and necessary. It cannot therefore act on the complainant’s word alone. It would need strong evidence, likely including its own officers witnessing the noise.
13. An abatement notices is a notice served by the Council telling a person responsible for a statutory nuisance to take the steps necessary to stop the nuisance. There is nothing in the EPA 1990 that states councils must take any action to enforce the abatement notice. However, if the statutory nuisance still exists, or is still likely to occur, then the Council remains under a duty to some something to remedy the nuisance.

The Council’s guidance

14. The Council’s website provides a noise log template. It advises people to complete the noise log with preferably two weeks’ worth of information so it can deal with complaints as soon as possible.

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. ASB can include noisy, rowdy or inconsiderate neighbours.
16. 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.
17. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.

Section 82 of the Environmental Protection Act 1990

18. 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.
19. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

What did happen?

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. Mrs X contacted the Council in July 2021 to complain about noise coming from her neighbour. She said she had logged the noise for the past two weeks. She contacted the Council again in September 2021 to state that she had not had a response regarding her noise complaint. She also contacted her MP.
22. An officer was allocated to look into Mrs X’s noise complaint in October 2021 and the officer issued a letter to Mrs X’s neighbour the following month. It advised the neighbour of the complaint and stated the Council could serve an abatement notice if it witnessed noise amounting to a statutory nuisance.
23. The Council asked Mrs X to fill in diary sheets and in December 2021 told her the diaries she had previously provided were not detailed enough.
24. The Council installed noise recording equipment in Mrs X’s home between 14 and 20 December 2021 and again in January 2022. But the Council deemed there to be insufficient evidence to warrant a case of noise nuisance. It offered to reinstall the equipment in the summer when Mrs X said the noise gets worse.
25. Mrs X contacted the Council in May 2022 to report further noise. The noise equipment was re-installed between 12 May and 5 June 2022. But the Council did not deem the noise to be a statutory nuisance.
26. Mrs X provided further recordings of noise to the Council in June 2022 and the Council issued an informal community protection warning (CPW) to Mrs X’s neighbour.
27. Mrs X continued to report further noise issues to the Council and the Council issued her neighbour with a community protection notice (CPN) in July 2022. It stated the neighbour had until 5 August 2022 to rectify the noise nuisance.
28. The Council sought advice from a barrister on how to progress the case. The Council said it was advised to serve Mrs X’s neighbour with an abatement notice, which was issued on 5 September 2022. It stated the neighbour was required to abate nuisance by the following day.
29. Further noise equipment was installed at Mrs X’s property which was to remain for two weeks.
30. On 12 September 2022, Mrs X told the Council the noise was still causing an issue and the Council said it still required the gathering of evidence.
31. The Council received Mrs X’s complaint on 28 September 2022. She said she had received no contact regarding her noise complaints.
32. Mrs X contacted the Council in October 2022 for an update as she said she was told she would receive a call. The Council said it was in the process of determining whether the logs and evidence could be deemed as a statutory nuisance. It said it was trying to arrange an independent review of the evidence.
33. In the same month, the Council advised Mrs X the noise logs had been reviewed by an independent colleague and said the noise did not meet the threshold for a statutory nuisance. This was because it said there were no examples of the noise at anti-social times for extended periods. It said the abatement notice was still relevant and said if the noise level increased considerably, it would consider reinstalling the noise equipment.
34. Mrs X told the Council she was still having issues and the Council said it would provide a formal response to her complaint which it did on 28 October 2022. The response included a chronology of communications and actions taken. It said:
• Due to an increase in noise complaints over the Covid lockdown period there was a backlog of complaints and said Mrs X’s initial complaint in July 2021 was awaiting allocation. It apologised for the lack of contact during this time.
• Mrs X’s complaint had been incorrectly logged under a miscellaneous heading which led to it remaining in awaiting allocation longer than it may have been if it had been correctly logged as a noise complaint.
• It apologised that no one had contacted Mrs X to advise her that the logs she had provided were not detailed enough. But said this was because the complaint had not yet been allocated.
• The officer had tried to contact Mrs X but it turned out the contact number was incorrect. It recognised the officer could have contacted Mrs X by email. It said it would remind officers to review all means of communication when making initial contact in future.
• The Council cannot immediately intervene to stop the noise but needs to investigate to establish the nature of the problem.
• The Council had taken steps that were ‘reasonably practicable’ to investigate Mrs X’s complaint, there is no duty to take legal action where the Council is satisfied that a statutory nuisance does not exist.
35. Mrs X was unhappy with the Council’s response and asked for her complaint to be escalated to the next stage.
36. In November 2022, Mrs X told the Council the noise had continued. The Council said in order for the noise equipment to be reinstalled, Mrs X would need to continue to complete diary sheets as the nuisance occurred. It said the abatement notice was still relevant but said the noise experienced must be shown to be more of a nuisance than captured by previous recordings. The Council said it would call Mrs X the following week. But Mrs X said she did not receive a call.
37. In December 2022, the Council asked Mrs X to return the completed noise logs.
38. The Council responded to Mrs X’s complaint under it stage two response in January 2023. It apologised for the delay in initially dealing with Mrs X noise complaint. It also said:
• Due to officer’s workloads, it was not able to respond to emails immediately. It said Mrs X had submitted multiple emails daily which caused difficulties for officers when keeping track of enquires.
• The correct processes and procedures had been adhered to in relation to Mrs X’s noise complaint.

Analysis

39. 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.
40. Mrs X initially contacted the Council in July 2021. The Council allocated an officer to her complaint in October 2021 and contacted Mrs X regarding the diary sheets in December 2021. This is fault. The Council has apologised for the delays and recognised that it could have contacted Mrs X by email if the contact number was incorrect.. There is also evidence of further fault as there were times Mrs X was told she would receive a call but she did not and would have to get in touch with the Council. This caused significant stress to Mrs X who spent unnecessary time and trouble in contacting the Council for a response.
41. Mrs X said she did not receive a suitable explanation from the Council in its complaint’s responses. In the responses which are detailed in paragraph 34 and 38, the Council apologised for the delays in dealing with Mrs X’s complaint and explained the reasons for the delay. It also provided a chronology of actions taken and explained it needed to investigate to establish the nature of the problem. Therefore, I am satisfied that the Council did provide Mrs X with a detailed explanation.
42. Once Mrs X’s complaint was allocated to an officer in October 2021, the Council advised the neighbour of the complaint and installed noise equipment in Mrs X’s property in December 21. But the Council said there was insufficient evidence to warrant a case of noise nuisance. Mrs X reported further concerns and the equipment was reinstalled and the Council issued the neighbour with a CPW; followed by a CPN. When Mrs X reported further concerns, the Council sought advice from a barrister and served her neighbour with an abatement notice and noise equipment was reinstalled. The case was reviewed by an independent officer who said the noise did not meet the threshold for a statutory nuisance. But the Council said the abatement notice was still relevant and said Mrs X would need to continue to complete diary sheets as the nuisance occurred. The Council told us it was determined that the noise was borderline nuisance and notices were served to prevent the noise from getting any worse. This is the correct process. As there is no fault in the Council’s decision making process, I cannot question its decision.

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Agreed action

43. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• Apologise to Mrs X for the initial delay in dealing with her complaint and lack of communication.
• Pay Mrs X £150 to acknowledge the unnecessary time and trouble she spent contacting the Council for a response.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman