Summary: Mr X complained the Council failed to properly investigate his complaints of noise nuisance from his neighbours. Mr X says the Council did not resolve the issue or put anything in place to stop the noise recurring. There was no fault in the Council’s investigation into the noise. There was some fault in the Council’s communication with Mr X, but it has already apologised for any injustice this caused.

The complaint

1. Mr X complains the Council failed to properly investigate his complaints of noise nuisance from his neighbours. Mr X says the Council has not resolved the issue or put anything in place to stop the noise recurring.
2. Mr X says the matter caused him distress and frustration.

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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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 spoke to Mr X and considered information he provided.
8. I considered the Council’s response to my enquiry letter.
9. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Statutory nuisance

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance can include noise from residential premises.
11. 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.

12. There is no fixed point at which a noise becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. This may include asking the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
13. 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.
14. Councils can take formal action through the Courts to deal with statutory nuisances. But a council can also decide to take informal action if the issue complained about is causing disturbance but is not a statutory nuisance. For example, they may write to the person causing the nuisance or suggest mediation.

Section 82 of the Environmental Protection Act 1990

15. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded the complainant is suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
16. 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.

Anti-social behaviour

17. Councils have a general duty to take action to address 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.
18. For example, they may approach a complaint as an environmental health issue, where the complaint is about noise or pollution.

The Council’s policies for statutory nuisance and anti-social behaviour

19. On its website the Council advises people to contact it if they are experiencing noise nuisance. It recommends keeping a log of incidents and reporting to the Council if the issue occurs more than three separate times in a month.
20. The website explains the definition of statutory nuisance as set out above. The Council also lists types of noise it can or cannot deal with. It says a statutory nuisance cannot cover noise which is “generated from daily activities” or “shouting, raised voices, arguments, laughing”. It suggests that complaints about shouting, laughing etc may be reported as ASB instead.
21. The website says the Council will assess any report of noise nuisance within 24 hours and will contact the affected person within five working days. If the Council can help, it will allocate an enforcement officer who will keep the complainant updated on progress. If it cannot help, it will also inform the person affected.
22. The Council’s website on how it addresses ASB says this is behaviour that can affect a person’s quality of life and peaceful enjoyment of your home. It can include “behaviour that causes or is likely to cause harassment, alarm or distress”. The website provides some examples of behaviours it can and cannot investigate, examples of behaviours which should be reported to the police and a link to the page explaining its noise policy.

What happened

23. Mr X lives in a privately rented property in the Council’s area. Mr X’s neighbour lives in a private rented property connected to Mr X’s home.
24. In February 2022, Mr X reported an incident of noise nuisance during the night from his neighbour playing a guitar at unreasonable hours. The Council logged this on its system but took no action and closed the case in August 2022 as it decided the issue was an isolated incident.
25. After the report, Mr X says he spoke with his neighbours on two occasions to resolve the matter informally, but this did not result in a change of behaviour.
26. In mid-September 2022, Mr X contacted the Council again. He told it of an incident of noise nuisance during the day from his neighbour playing loud music. Mr X also provided the Council with a log of seven incidents between February 2022 and September 2022 which included disturbance from talking, playing guitar and loud noise from speakers. The Council took no action because the issues complained about did not meet its threshold of three reports within a rolling month.
27. Later that month, Mr X contacted the Council about loud music and amplified sound from his neighbour during the evening. The Council logged the matter but did not act as the threshold for three incidents in a rolling month was not met.
28. In early October 2022, Mr X contacted the Council about loud music and amplified sound which had taken place the previous evening. The Council informed Mr X it could not act because it did not meet the Council’s threshold of three reports in a one-month period. Mr X gave the Council two other log reference numbers. The Council then logged the incident, allocated a noise officer, and wrote a warning letter to Mr X’s neighbour about the noise.
29. The Council later wrote to Mr X and asked him for more information about the noise. Mr X gave the Council his mobile number and asked the Council to call the following day. The noise officer emailed Mr X seven days later and said they had tried to call Mr X but had not been able to speak with him. The officer told Mr X he was on annual leave but would contact Mr X upon his return.
30. Mr X reported three further incidents of music noise in October 2022. The Council logged the incidents but did not act as the incident took place outside the Council’s service hours. Mr X told the Council he had made six reports, but nothing had been done and asked when he could speak with an officer.
31. Mr X contacted the officer again in early November 2022, asking when he could speak to them. There is no evidence the officer contacted Mr X at the time.
32. Mr X remained dissatisfied and complained to the Council. He said the Council had not acted to address his complaints of noise nuisance.
33. The Council responded to Mr X at stage one of its process nine working days later. The Council:
• summarised the incidents and actions it had taken since February 2022 as above, including sending warning letters to Mr X’s neighbour and offering to visit, but said the music had stopped when the Council called back;
• accepted it had not informed Mr X about how the Council investigates complaints about noise nuisance and what was required to progress the matter further;
• said it had logged his reports under four different case references by mistake;
• apologised for failing to provide information about how it investigates noise complaints and said it would assign high priority to Mr X’s house to enable it to respond quickly to any future reports; and
• said it would improve its service because of the complaint by ensuring alternative contacts are available when an officer is on annual leave, and by ensuring checks made on cases are robust.
34. In November 2022 Mr X reported four incidents of noise nuisance from loud music. The Council sent a further warning letter to the neighbour. The Council contacted Mr X and offered to visit him at home. On two occasions, the Council returned Mr X’s call within two hours of a report of noise, but each time the music had already stopped.
35. In December 2022, Mr X reported two incidents of noise nuisance from music. The Council logged the report as it had no officers on duty at the time to respond.
36. Mr X then wrote to the Council and asked to speak with a senior officer. He told the Council the noise was having a significant impact on him and his family. The officer responded the next day and told Mr X he would pass his request to a manager. The officer explained the service needed to assess the noise in person when it took place to allow it to complete a noise assessment. The officer offered a pro-active visit to assess the noise.
37. Later that month, Mr X remained dissatisfied with the Council’s response and requested a stage two complaint escalation. He told the Council it had still not addressed the issue of noise from his neighbour.
38. The Council responded in January 2023 and told Mr X:
• it had not been able to visit and witness the noise to decide whether Mr X’s reports met the threshold of statutory noise nuisance, and it needed to do so before it could take further action;
• it had offered a pro-active visit to Mr X’s house at a time the noise typically occurs, but Mr X had declined the offer to date;
• it had not passed his request to speak to a more senior officer of its team during December 2022, and apologised for this;
• did not uphold Mr X’s complaint about how the Council responded to Mr X’s reports of statutory noise nuisance as the Council had written warning letters to Mr X’s neighbour; and
• said it had offered to visit Mr X to assess the matter, but this was declined. The Council offered a further proactive visit and provided the contact details of a case officer to arrange this.
39. In January 2023, Mr X reported three further incidents of noise from music. The Council logged the report as it had no officers on duty at the time.
40. In February 2023 the Council wrote to Mr X and provided details of the case officer’s availability. It says it told Mr X to contact the Council either on its website or by phone to log any further incidents. The Council offered a proactive visit to Mr X during the week to discuss the matter further.
41. Mr X responded and told the Council he was unavailable at the times suggested due to work and other commitments but said he may be available at another time in the future.
42. Mr X contacted the Council two additional times in February 2023 about noise nuisance from loud music. On one occasion, no officer was on duty. On another occasion, the Council says an officer responded to Mr X and asked him when the noise typically occurs and made a further offer to complete a proactive visit.
43. Mr X reported two further incidents of noise nuisance from music, one in March and another in April 2023. The Council’s response to our enquiries shows no officer was on duty at the time of the reports to conduct a visit.
44. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

Council response to us

45. Mr X’s neighbour moved from the house sometime during his complaint. The Council says it has continued to receive complaints from Mr X about a new neighbour.
46. The Council said it has offered to visit Mr X at a time when the noise takes place. However, it says Mr X has not yet accepted the Council’s offer. The Council said it has no noise-monitoring equipment to install in Mr X’s house to assist it in deciding whether the reports indicate a statutory noise nuisance.
47. The Council said it reminded officers to ensure their out-of-office is utilised when they are on annual leave and to signpost to the duty officer. This is in line with the Council’s stage one recommendations.
48. The Council said information about how complainants can take private action through the courts in respect of statutory noise nuisance is detailed on its website.

Analysis

49. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by a council in the absence of fault in the process.
50. The evidence shows in February 2022 and again in September 2022 the Council did not inform Mr X about the action it intended to take in relation to his reports of noise nuisance within five working days. This is not in line with the Council’s policy and is fault. In its stage one response, the Council accepted fault for failing to provide Mr X with details about what information it needed to act in respect of his complaints of noise nuisance. The Council apologised for its poor communication, and this was appropriate to remedy any injustice this caused. However, the Council did not consider what action it could take to ensure the issue does not reoccur in the future.
51. The Council also accepted fault for failing to respond to Mr X’s request to speak with a senior officer in December 2022. The Council apologised, and this was appropriate to remedy any injustice caused.
52. The Council initially told Mr X it was unable to act because it had not received three reports of noise nuisance in a one-month period. This is fault. The Council should consider whether to exercise its discretion according to the merits and circumstances of each complaint and act proportionately. It should not maintain an overly rigid approach regarding its policy. Whilst this is the case, the Council started the process of investigating Mr X’s complaints within one month in any event. Therefore, I do not consider the decision not to investigate sooner caused Mr X a significant injustice.
53. Once the Council received three reports of noise nuisance in September 2022, it acted by sending warning letters to Mr X’s neighbour. As the noise continued, its out of hours service contacted Mr X by phone to attempt to witness the nuisance itself. The Council offered several proactive visits to Mr X’s home at a time the noise typically occurs to enable it to complete a noise assessment. Mr X declined due to other commitments. The evidence shows the Council acted proportionately and decided it required further evidence before it could progress the matter. This is not fault. If Mr X continues to experience noise nuisance, he could accept the Council’s offer to visit to enable the Council to complete its noise assessment.
54. Whilst there was no fault in the Council’s investigation, the Ombudsman considers it good practice for councils to inform complainants of noise nuisance about their right to take private court action under Section 82 of the Environmental Protection Act 1990. The Council’s website contains details about how to take this action, but the Council did not proactively inform Mr X about this. This is fault. Mr X made repeated complaints to the Council about the noise he is experiencing over several months, and whilst the Council decided it could not act without further evidence, Mr X could have been directed to alternative action he could take. In addition, if others are affected by similar issues but do not have access to the Internet, they may be unaware of this potential alternative.

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Agreed action

55. Within one month of the final decision, the Council agreed to write to its environmental health officers and remind them of the need to inform complainants of noise nuisance what information is required to enable it to progress its investigation and how the Council intends to investigate their reports of statutory nuisance.
56. Within one month of the final decision, the Council agreed to write to its environmental health officers and remind them that, where it receives a report of statutory noise nuisance, it should assess the merits of each report and exercise discretion to investigate where it decides it is proportionate to do so, even if the threshold of three reports in a rolling one-month period is not met.
57. Within one month of the final decision, the Council agreed to consider when and how it could inform complainants of noise nuisance about their right to take private action in the magistrate’s court under Section 82 of the Environmental Protection Act 1990. This could be once the Council has exhausted all other avenues of investigation itself but continues to receive reports of statutory noise nuisance.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I completed my investigation. I found fault, and the Council has already remedied the injustice caused.

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Investigator's decision on behalf of the Ombudsman