Summary: Mr X complains the Council has delayed acting on a statutory noise nuisance. The Ombudsman finds fault with the Council for delaying action on a statutory noise nuisance. The Ombudsman also finds fault with the Council for misleading Mr X during its complaint handling. The Council has agreed to make a financial payment and service improvements.

The complaint

1. Mr X complains the Council has failed to act on a statutory noise nuisance.
2. Mr X complains the Council has not properly considered the information provided and has failed to communicate with him about the action taken.
3. Mr X also complains about the handling of his complaint.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I considered Mr X’s complaint, information he provided and information from the Council.
8. I considered comments from Mr X and the Council on a draft of my decision.

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What I found

Legislation and Guidance

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’ such as noise.
10. 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.

11. 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.
12. 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.
13. Councils can 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. 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.
14. 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. 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.

Abatement notice

15. A s80 abatement notice requires the perpetrator to take steps to abate the identified nuisance. It can include either, or both, negative requirements (‘stop playing loud music’) and positive requirements (‘install sound installation’).
16. It should also have a time-limit for compliance by the perpetrator, but there is no time-limit on the notice itself – once it is in force it remains in force until and unless it is withdrawn.
17. If the perpetrator fails to comply with the notice, they can be prosecuted in the magistrates’ court. Failure to comply is a criminal offence and so must be established on the criminal standard of proof (‘beyond a reasonable doubt’).
18. If found guilty, the perpetrator can be fined, both for the offence up to that point, and for each further day they fail to comply. The council can also carry out work in default to ensure the notice is complied with, and, where all other efforts have failed, can seek an injunction against the perpetrator.

What happened

19. Mr X lives next door to Mr Y. Mr X complained to the Council that Mr Y was causing a noise nuisance.
20. The Council visited Mr X several times to review the noise. Officers also made several attempts to speak with Mr Y to ask him to lessen the noise, but were not successful.
21. All officers that visited agreed the noise amounted to a statutory noise nuisance which was distressing to Mr X and other neighbours. It meant that they were routinely sleep deprived as the noise interrupted their sleep. This was confirmed by officers visiting at night.
22. The Council served an abatement notice to Mr Y in February 2022.
23. Mr Y continued to create a noise nuisance in February, March and April 2022. In April the Council wrote to Mr X about the noise nuisance.
24. The Council advised Mr Y that as he had not complied with the abatement notice, it would now be passing the case to its legal team to pursue legal action.
25. Mr X continued to report the noise nuisance to the Council. Several times Mr X asked the Council what action was being taken as he was still experiencing the noise nuisance.
26. Mr X complained to the Council in April 2022 that it had not taken further action and had allowed the noise nuisance to continue.
27. The stage one response from the Council in April 2022 said if there was an identified noise nuisance, it would serve an abatement notice, but at that time it had not identified a nuisance.
28. Mr X remained unhappy with the Councils response and asked to escalate his complaint to stage two but said there was little more officers could do as they did not witness a noise nuisance.
29. Mr X continued to report the noise nuisance, and officers again visited between April 2022 and December 2022 and recorded that they witnessed a noise nuisance, and that Mr Y was breaching the abatement notice.
30. The Councils stage two response in November 2022 encouraged Mr X to use noise recording equipment to report the noise and acknowledged that officers had visited.
31. Mr X remained unhappy and bought his complaint to the Ombudsman.

Analysis

32. The Council was proactive in identifying there was a noise nuisance, and several Council officers signed witness statements to confirm this. The Council agreed the noise unreasonably and substantially interferes with Mr X’s use of enjoyment of his home.
33. This resulted in the abatement notice served to Mr Y, and the action following where the Council sought legal advice in April 2022 with a view to prosecute.
34. Officers continued to visit and record the statutory nuisance and breach of the abatement notice. However, the Council has not been able to provide any evidence of formal action it took between April 2022 and February 2023.
35. The Council met with Mr X in February 2023, after the Ombudsman started his investigation. The Council invited Mr X to make a witness statement and said it would invite Mr Y for interview.
36. The Council was aware at this point that Mr X was living with the noise nuisance over a prolonged period of time. This was confirmed by several of its officers in the witness statements and the Council was aware that officers were repeatedly being called out to the nuisance. The Council has not been able to provide me with any information of what formal action it took between April 2022 and February 2023. This shows the Council had not taken any action and delayed addressing the matter.
37. The Council has delayed addressing the continuing noise nuisance, causing distress to Mr X, who has been left with uncertainty and poor living conditions because of the Councils delay in acting.
38. Complaint handling
39. The Councils stage one response said officers did not identify a statutory noise nuisance. This was untrue as officers had already identified a statutory noise nuisance and served an abatement notice. This was fault by the Council in failing to get accurate information in its complaint response, and misleading Mr X about the actions the Council had taken.
40. The Councils stage 2 response said that Mr X should use noise equipment to report any ongoing noise. The Council at this point was already aware Mr Y was not complying with the abatement notice and was seeking legal advice. The response at stage two did not recognise the severity of the matter and the action the Council was already taking.
41. The complaint responses from the Council communicated inaccurate information and misled Mr X about the situation. This was fault by the Council when it should have been transparent about the situation.
42. This has caused Mr X further distress and injustice.

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Agreed action

43. Within 4 weeks the Council has agreed to

• Write to Mr X and apologise for the fault identified
• Pay Mr X £200 per month for the 10 months the Council delayed acting on the noise nuisance. The total would be £2000.
• Pay Mr X £250 in recognition of the distress caused by the poor complaint handling and misleading Mr X.
• Write to Mr X and explain what action the Council is taking and how it will keep him updated moving forward.
• Provide training and guidance to complaint handlers to ensure that accurate information is sought as part of complaint investigations.
• Review the process for taking action where someone does not comply with an abatement notice. The Council should specifically look at how it can act in a timely manner once it has agreed to take legal action.

44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have now completed my investigation. I find fault with the Council for unreasonably delaying taking action on a statutory noise nuisance, and for misleading Mr X during the complaints process.

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Parts of the complaint I have not investigated

46. Part of Mr X’s complaint is the Council has delayed acting from August 2020.
47. The Ombudsman will only exercise discretion to consider issues older than 12 months where there is good reason to. Mr X said in his complaint to the Council there was a period without noise for six months prior to the action from February 2022. It would be reasonable to say the Council did not take legal action at this time because the noise had stopped. Therefore, I consider it reasonable to only consider the Councils actions in the period after the noise was reported again.

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Investigator's decision on behalf of the Ombudsman