Summary: There is no fault by the Council in its current decision not to enforce a noise abatement notice it has served on a hotel owner. However, the Council is at fault because it did not consider whether it was appropriate to use other powers it has to tackle anti-social behaviour at the hotel; and because it did not make an assessment of the risk of harm to the complainant. The Council has now agreed to do these things.

The complaint

1. I will refer to the complainant as Mr H.
2. Mr H complains the Council has not taken effective action to tackle anti-social noise from a neighbouring property. Although the Council has served an abatement notice on the owner of the property, Mr H says this has had no effect and complains the Council has failed to take action to enforce the notice.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. I reviewed Mr H’s correspondence with the Council, and comments the Council made in response to my enquiries with it.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. The following chronology will provide an overview of key events relevant to this complaint. It is not intended to provide an exhaustive list of everything which happened.
8. Mr H lives in a flat in a building which forms part of a terrace. In the adjoining building is a business which advertises itself as a hotel.
9. In October 2022 Mr H contacted the Council to report noise nuisance coming from the hotel. He said there would often be loud music playing throughout the night, with broken glass and rubbish being left out on the street. Mr H said there was also drug abuse on the premises. The Council sent a warning letter to hotel’s owner, and asked Mr H to complete a nuisance diary if the problems persisted.
10. In November the Council arranged to visit the site during a night shift, but said it found no evidence of “partying” at the property. A week later it visited Mr H during the day. It recorded there was audible music from the hotel but noted this would not be a statutory nuisance because of the time of day. The Council also said it spoke to the owner of the hotel on the same visit.
11. A few days later Mr H sent the Council a video he had recorded which included loud music, and demanded it do something to stop the nuisance. The Council asked Mr H to explain exactly where the music was coming from, noting there were different rooms in the hotel which might be used to host parties. It also explained that it could serve an abatement notice on the owner, if it substantiated a statutory nuisance.
12. Shortly after this the Council received another noise complaint about the hotel from a different local resident.
13. Officers from the Council’s licensing department carried out a night-time visit to the hotel at the end of November. They decided the noise amounted to a statutory nuisance, and the Council’s notes say they then called the police, “raided the premises and closed it down”. Immediately after this the Council served an abatement notice on the premises owner. It explained to Mr H the owner could be fined if he breached the notice.
14. In early December Mr H reported more loud music from the hotel. The Council sought to arrange to visit him over a weekend, but its notes do not show whether this happened. After a further report of loud music, as well as drug use and rubbish being left outside the property, the Council offered to install noise monitoring equipment in Mr H’s property, to enable him to make recordings for the Council to review. While Mr H was considering this, the other complainant agreed to it, and so the Council installed the equipment in their property instead.
15. A few days later the Council collected the noise monitoring equipment and reviewed the recordings the other complainant had made. It decided the noise evident on the recordings was not loud enough to constitute a statutory nuisance, and therefore could not evidence a breach of the abatement notice.
16. However, at the same time the Council identified the owner’s use of the building was possibly a planning enforcement matter. This was because it now understood the ground floor of the building was being used as an unlicensed ‘private hire party room’, when its planning permission was for a retail unit. The Council wrote to Mr H to update him on these developments.
17. Over the Christmas period Mr H emailed the Council for updates. Upon receiving out-of-office replies from the two officers he had been dealing with, Mr H then sent a series of abusive messages, accusing the Council of incompetence and failing to intervene in the situation.
18. In January 2023 the Council wrote a letter to Mr H. It said it had dealt with the matter in accordance with the Council’s policy, which had culminated in it serving an abatement notice on the hotel owner after officers had witnessed a statutory nuisance. The Council said it had also informed Mr H the police were investigating the hotel, and that council officers would be providing statements to support this.
19. The Council said that, despite keeping Mr H updated on the progress of its investigation, he had “on numerous occasions” sent inappropriate messages to council officers. It said one email in particular that Mr H had sent, which included profanities, was unacceptable.
20. For this reason, the Council said it had decided its “Officers… partners, contractors or agents” would not deal with Mr H or his noise complaint for a period of 12 months. It said it was doing this without a warning because of the abusive manner of Mr H’s communications. The Council then referred Mr H to the Ombudsman if he wished to pursue the matter.
21. Mr H complained to the Ombudsman on 22 January.

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Legislative background

Anti-social behaviour

22. 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.
23. 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; or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.

24. The 2014 Act introduced six new powers for agencies involved in tackling ASB. Those currently available to councils 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; and
• a civil injunction (a court order, which can be made upon application by the local authority or other agencies).

Statutory nuisances

25. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
26. 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

27. 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.

28. 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.
29. 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.

Abatement notices

30. 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.
31. 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.
32. 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.

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Analysis

33. The Council’s notes show it began investigating ASB at the hotel in October 2022. By the end of November, it had decided the noise arising from the hotel constituted a statutory nuisance, and served an abatement notice on the owner. I have not seen a copy of the abatement notice, but from context I assume it requires the owner to stop and/or prevent others from playing excessively loud music at unsocial times.
34. As the Council explained to Mr H, evidence the owner had breached these requirements would make him liable to receive a fine. However, it does not appear it clarified to Mr H that it would not be the Council issuing any such fine, but the magistrates’ courts; and for it to do so, the Council would need to provide the courts with compelling evidence of a breach. In practice, this means the Council needs to prove, a second time, the hotel is creating a statutory nuisance, before it can seek to prosecute the owner.
35. The Council tells me it has not arranged to carry out any form of monitoring from Mr H’s property, due to what it considers his aggressive behaviour. I will return to this point later. Despite this, as there is another complainant involved, it has still been able to monitor the hotel’s compliance with the notice, and it does not consider the evidence from this monitoring would support a prosecution.
36. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision. We call this ‘fault’ and, where we find it, we can examine the consequences of the fault and ask a council to address these.
37. However, we do not offer a right of appeal against council decisions, or seek to replace their judgement with our own. Where a council has made its decision without fault, we cannot criticise it, no matter how strongly a complainant might feel about it. We do not uphold complaints just because someone believes a council’s decision is wrong.
38. In this case, while I understand Mr H considers the owner has breached the abatement notice and should therefore be fined, I am satisfied the Council has properly considered whether to enforce the abatement notice. It has taken the proper steps to gather evidence and explained – in its notes – why it does not consider it appropriate to take further action. This is what we would expect to see and there is no evidence of fault in this respect.
39. I also note the Council has involved its planning and licensing departments in the investigation of the hotel. Unfortunately I do not know the current status of these aspects of the investigation, but it is still positive the Council has thought creatively about the problems caused by the hotel and taken a multi-pronged approach to tackling them. We sometimes criticise councils for failing to do this and so this is encouraging to see.
40. Similarly, it is also positive to see that the Council has been working with the police, which has been undertaking its own investigation of the hotel with regard to the unlawful sale of alcohol and to drug use on the premises; although the Council tells me the Crown Prosecution Service is currently declining to prosecute the matter, and so this may not go any further.
41. Having said all this, I do have two points of criticism here.
42. First, although its main feature is the loud music from the hotel, the complaint Mr H has made is one of anti-social behaviour – not simply of noise nuisance. He has also reported incidents of intimidation by the hotel owner and visitors, as well as littering outside the hotel; but even without these, the apparent use of the hotel as some kind of unofficial nightclub, without regard to its effect on neighbours, could reasonably be considered ASB in and of itself.
43. This being so, I would expect the Council to have also considered whether it was appropriate to also use any of its specific ASB powers here. For example, a community protection notice works in a similar way to an abatement notice, but can be used generally against behaviour which is having a detrimental effect on the local community, without the need to first prove a statutory nuisance. And the service of an abatement notice does not prevent the Council from also using a CPN.
44. I should stress this is not to say I consider the Council should have served a CPN – which, in any case, requires a warning to be issued first – nor any of its other ASB powers. But I am concerned the Council seems to have focussed solely on the noise nuisance aspect, without considering whether any of its other powers might also be brought to bear on the situation.
45. Second, the Government has issued statutory guidance for relevant agencies on the use of their ASB powers. At page 27, it says:

“It is good practice for agencies to assess the risk of harm to the victim(s), and any potential vulnerabilities, when they receive a complaint about anti-social behaviour. This should be the starting point of a case-management approach to dealing with anti-social complaints. The welfare, safety and well-being of victims must be the main consideration at every stage of the process. It is therefore important to identify the effect that the reported anti-social behaviour is having on the victim(s), particularly if repeated incidents are having a cumulative effect on their mental or physical well-being.”

46. Although it is not a mandatory requirement for the Council to carry out a risk assessment, I note Mr H made repeated references to the effect the noise was having on his health. Under these circumstances, I would expect the Council to have followed the statutory guidance and assess the risk of harm to Mr H. However, there is no evidence the Council did so here.
47. I therefore find fault by the Council here for these two reasons, though it is difficult to say whether either fault caused Mr H a substantive injustice. While the Council should have considered its wider ASB powers, alongside its powers to deal with statutory nuisance, it could reasonably have concluded it was not appropriate or necessary to actually use these powers. Equally, while the Council should have undertaken a vulnerability risk assessment, this does not mean its approach to the case would have been materially different.
48. However, there is uncertainty here, which is an injustice to Mr H in its own right. I will consider what the Council should do to address this presently. First, I will discuss the communication ban the Council imposed on Mr H.
49. The Council decided to invoke its unreasonable behaviour policy in January 2023, in response to correspondence it had received from Mr H which it considered abusive. This included various derogatory comments about council officers, as well as one message which included profanities.
50. I should note I do not condone Mr H’s behaviour. Although I acknowledge his frustration at the situation and what he sees as a lack of progress, at least with respect to the noise nuisance investigation, the Council was appropriately following the procedure set out in law. Officers are entitled to carry out their duties without fear of verbal abuse; and, importantly, it was the owner of the hotel, not council officers, who was responsible for the ASB Mr H was suffering.
51. I will also note that it is for the Council, not the Ombudsman, to decide whether a person’s behaviour warrants some form of communication restrictions, in line with its policy. My role here is not to make my own judgement on whether Mr H’s behaviour reached that threshold.
52. However, I am concerned the sanction the Council imposed on Mr H was that it would not engage with him any further on the noise issue, or accept any complaint about this from him.
53. While an abatement notice it has issued remains in force, a council must ensure it has some way of monitoring compliance. In most cases this will simply involve asking the complainant(s) to report any apparent breaches, in the first instance. But with the Council’s refusal to engage any longer with Mr H, it evidently cannot rely on him to do this.
54. In this case, there is a second complainant with whom the Council is still working to monitor the hotel’s compliance. Had Mr H been the sole complainant though, it does not appear the Council would have been able to monitor the situation, after invoking the communication ban. It would therefore have put itself in a situation where it could not discharge a statutory duty.
55. Again, it is for the Council to decide whether to invoke its unreasonable behaviour policy. But if, in doing so, it creates a conflict with the Council’s duties, we would expect it take steps to ensure it could still discharge them, despite any sanctions it had imposed.
56. Given the fact the Council was able to monitor the hotel’s compliance anyway, this is realistically only a hypothetical problem here. This being the case, I do not consider I should find fault for this reason. But I remain concerned about the implications of the Council’s use of its unreasonable behaviour policy, and I would ask it to note, under other circumstances, we might find fault for this.

Remedy

57. As I have explained, I consider there is an injustice to Mr H in the uncertainty arising from the Council’s faults here.
58. To remedy this injustice I consider the Council should do two things. First, it should review the situation with the hotel with a mind to its specific ASB powers, and consider whether it may be appropriate and worthwhile to use any of those powers, in conjunction with the abatement notice it has already served. It should record a clear reasoning for its decisions.
59. Second, the Council should undertake a vulnerability risk assessment of Mr H. I am conscious this might conflict with the Council’s decision to restrict contact from him, a decision it was entitled to make. However, it should have carried out a risk assessment at an early stage in the process, before Mr H’s behaviour led the Council to invoke the ban; and so, on balance, I consider it remains appropriate for the Council to do this now. It will be for the Council to decide whether it needs further information from Mr H in order to complete this assessment.

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Agreed action

60. Within one month of the date of my final decision, the Council has agreed to:

• review the current status of its investigation into ASB at the hotel, and consider whether it is appropriate to use any of its specific powers under the 2014 Act as a way of tackling the ASB, alongside the abatement notice it has served. The Council should record a clear reasoning for whatever decisions it makes; and
• undertake a vulnerability risk assessment of Mr H in line with the ASB statutory guidance.

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

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Final decision

62. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman