Summary: Mrs K complained about the behaviour of her neighbour. There was no fault in how the Council investigated her complaints from a planning control and statutory nuisance perspective. However, the Council did not fully consider its role to investigate antisocial behaviour, and it wrongly refused Mrs K’s requests for an ASB review. The Council has agreed to take action to put matters right.

The complaint

1. Mrs K told the Council that her neighbour uses his garage to store landscaping materials for his business. The garage adjoins Mrs K’s garage which she has converted to a bedroom for her disabled daughter. She says the neighbour blocks her drive, makes too much noise, and the workers swear, and bully and threaten her. Mrs K also says they have damaged the property.
2. Mrs K complains the Council has not done enough to deal with this and it has affected her physical and mental health severely.

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The Ombudsman’s role and powers

3. 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)
4. 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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What I have and have not investigated

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. Mrs K has been reporting these problems with her neighbour since 2020. I have taken into account Mrs K’s ill health, that she has been pursuing these matters with the Council, and that its decisions are informed by its earlier actions. For all these reasons, I have decided that Mrs K had good reason not to complain to us sooner and I have exercised discretion to investigate the Council’s actions from 2020 to date.

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How I considered this complaint

7. I considered the information provided by Mrs K and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken the comments into account before issuing this final decision.

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What I found

What happened

8. Mrs K lives in a residential area. She converted her garage to a bedroom for her disabled daughter. The adaptations were funded by the Council. Her neighbour’s garage adjoins the new bedroom. Mrs K’s neighbour uses the garage to store landscaping materials for their son’s business. She told the Council that this is very noisy, they block her drive, and they swear and behave antisocially.

Planning issues

9. The Council investigated whether the neighbour was using the garage as a business and whether they needed planning permission for business use.
10. 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. 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.
11. The Council visited the site in 2020, 2021, and 2023 to check the use of the neighbour’s house and garage. Its site visit notes from 2020 show that it saw inside the house and the garage and lists the items it found there. The neighbour explained that some of these belonged to a family member who has a landscaping business. They said he accesses the garage in normal hours. The Council viewed the neighbour’s CCTV footage of the family member coming and going with various items. The Council took into account the diary sheets completed by Mrs K and her CCTV footage. The Council’s visit notes set out the items taken into and out of the garage. It decided that the neighbour had not materially changed the use of the house from residential to business, and did not need planning permission.
12. Mrs K complained again in 2021 and the Council made an unannounced site visit. It found limited items in the garage relating to the landscaping business. The Council however served a planning notice requiring the neighbour to give more information. The Council considered this alongside CCTV footage which shows the same family member and often another person visits with him to use the garage. It listed the dates shown in the CCTV, the vehicle used and the items stored. The Council checked the company registration. The Council again concluded that the use was not materially changed from residential, and does not require planning permission. The family member does run a business and does store his equipment in the garage, but the garage is also used for domestic storage, and the majority of the business is conducted in client’s properties, away from the house.
13. Mrs K made further complaints to the Council in 2023. This time the Council did not visit the garage, but it did set out in a report, the information from Mrs K’s diary sheets and the videos she had sent it. It also took into account its visits in 2020 and 2021. It found that the use had not increased and it still did not consider this to need planning permission.
14. The Council has decided that the neighbour storing his materials in the garage was not business use and he did not need planning permission to do this. The Council has further explained that it appreciates that the person using the garage for storage does not appear to live there. It says that he would need planning permission if the use of the garage was materially different to the lawful use. The Council considered the evidence it had gathered from Mrs K, her neighbour and in its visits that the scale of the business use would not amount to material change of use. It has further explained that storage in the garage is naturally limited by the size of the garage and the number of domestic items already stored there. The Council has concluded that the use of the garage is similar to any tradesperson that stores equipment there while not at work.
15. The Ombudsman’s role is to decide whether there is fault in how the Council reaches its decisions. In terms of the planning use of the garage, the Council’s files show that it has properly investigated this. It has gathered information, and used this to decide that planning permission is not required. It revisited its decisions when Mrs K complained again and looked to see if the use had increased. There was no fault in how it decided that by storing some items in the garage, Mrs K’s neighbour has not materially changed the residential use.

Noise Nuisance

16. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include noise.
17. 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.
18. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers 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.
19. The Council officers will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officers will use their professional judgement to decide whether a statutory nuisance exists.
20. The Council investigated whether the noise from loading and unloading between the van and the garage, from loud music and from a dog barking was a ‘statutory nuisance’. The Council considered Mrs K’s diary sheets and her video footage. It made an unannounced site visit with the planning team in 2021.
21. It said that it is normal to use the garage to store equipment and tools. The Council said the noise the neighbour makes is loud but it is for a short time, infrequent and carried out during the daytime. The Council told Mrs K that in its view the noise is not a nuisance and she could take her own court action if she wished.
22. Mrs K complained again in 2021 and 2022. She told the Council the noise problems had got substantially worse. She sent the Council her diary sheets and video footage. The Council installed noise monitoring equipment in December 2021 and March 2022. The equipment did not record any noise during the December period, but Mrs K suggested the neighbours had stopped work for the Christmas holidays.
23. The Council again considered all the evidence it had gathered. Its report sets out how it considered the residential character of the area. It then considered the type and level of the noise. It noted that noise from items being moved in and out of the garage at the beginning and the end of the day, as well as some of the conversations, could be heard inside Mrs K’s house. It noted that the noise was loud at times, but it was only for a short period of time, between 10 and 30 minutes during the daytime. The Council also noted that the vehicle used was usually switched off while the loading and unloading took place, and occasionally machinery was left to run but again, only for short periods.
24. The Council took into account that Mrs K had converted her garage to a bedroom and so noise from the garage would be heard there. However, the Council has confirmed that the conversion was inspected when it was done and met building control requirements for insulation. It has explained that there is a requirement for sound insulation between two habitable rooms, but not between and bedroom and a garage.
25. The Council again decided that the noise was not a statutory nuisance.
26. In August 2022, Mrs K complained again about the noise. The Council did not investigate this because the noise was the same as before. Also in August, Mrs K complained about noise from her neighbour’s dogs barking. The Council found this was a nuisance and it served an abatement notice on the neighbour, which told the neighbour to stop the dogs from causing a nuisance with barking. It has since had only sporadic reports of the dogs barking.
27. Mrs K complained to the Council that it had not investigated the noise properly. The Council explained that its reports showed that it had investigated properly and explained to her why it could not take action. Mrs K complained again to the Council. It answered her questions about its investigation and decisions. It told her she could complain to the Ombudsman.
28. There is no fault in how the Council has investigated whether there is a statutory noise nuisance. It considered the information it had from the diary sheets and videos, from its visit and from the noise recording equipment. The Council applied the law and decided there was no statutory nuisance. With no flaw in how it reached this decision, there is no basis for me to criticise the outcome.

Antisocial behaviour

29. 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. The government issued statutory guidance for professionals on how to use their ASB powers.
30. 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 called an ASB case review (previously 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.
31. 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.
32. The Ombudsman published a focus report learning ‘Out of Order: lessons from complaints about antisocial behaviour.’ The Ombudsman considers it good practice to ensure the council fully consider its own role in tackling ASB; guard against policies being applied too strictly; and make sure the victim is at the heart of the council’s consideration.
33. The Council is part of the Community Safety Partnership. In summary, the ASB policy says that the Council’s Community Safety Team will deal with ASB cases as part of the partnership. It says that reports of ASB will be investigated appropriately and the partnership will use the tools and powers available to it under the law.
34. The Council sent me its ASB case review policy. This says that a person can request an ASB review where they have reported three incidents of ASB within the previous six months, with one of those incidents being within the last month. The policy says a request will be refused if an investigation into the incidents is ongoing.
35. Mrs K told the Council that the neighbours were swearing, and had intimidated and threatened her. The Council told Mrs K to report this to the Police. Its Community Safety Partnership had spoken to the neighbour but decided it could not take action.
36. In February 2021, Mrs K requested an ASB case review. The Partnership said that her request did not meet the threshold because the case was ongoing with its planning service; its Environmental Protection Service had investigated but there was no noise nuisance on which it could act; the landlord Housing Association was investigating; and property damage was being dealt with by her solicitor. It said that concerns about intimidation must be directed to the Police.
37. Mrs K requested an ASB case review again in March 2021. The Partnership again refused her request because there were ongoing investigations into the issues.
38. In October 2021, Mrs K complained that the Council had not done enough to tackle the ASB. The Council said its Community Safety Team had dealt with her ASB case review requests in accordance with the policy. The Community Safety Officers had spoken to her and the neighbours and provided her with advice and guidance.
39. Mrs K again requested an ASB case review in December 2021. This time the Council accepted the request. The Partnership said that the Police, the housing association, the Council’s Environmental Protection and its Community Safety Team had met to discuss her case. It said they had made a referral to social services to support her daughter. It had offered her mediation and Mrs K refused this. It had investigated whether the noise was a statutory nuisance, and the Highways Authority had given advice about parking issues. The Partnership said the Police had a case open to monitor complaints arising on the estate. The Police had not found the allegations of harassment met the criminal threshold but had offered both sides mediation. The Housing Association had asked the ASB team to respond to further complaints about her neighbours. Mrs K says she agreed to the mediation but her neighbour refused.
40. The ASB case review drew up an action plan. This included following up on the mediation; and considering CCTV in the wider community; following up Mrs K’s application for a disabled parking bay; and the housing association would write to her neighbours with advice on noise prevention.
41. There was fault in how the Council handled Mrs K’s reports of ASB. It wrongly rejected her request for an ASB case review. The current guidance makes it clear that a person may request a review even when an investigation is ongoing. This was compounded when Mrs K made a complaint about the lack of action and the Council reinforced its position.
42. I also note that there is some confusion in how the threshold is expressed. The Council’s policy says that the person can request a review within a month of the most recent report. The requirement that a review is requested within one month is overly restrictive and does not accord with the statutory guidance.
43. The Council told Mrs K to report the ASB to the police about intimidation. It may have been appropriate for the police to consider, but the Council should have considered its own powers when the police said that the neighbour’s actions had not met the criminal test for it to take action on intimidation or harassment.
44. The statutory guidance also says that the Council should consider inviting the victim to attend part of the case review meeting to help all parties understand the impact on them. I cannot see that the Council considered this.
45. The Council’s shortcomings here caused Mrs K frustration and distress, and put her to time and trouble when she had to make several requests for an ASB case review. However, I note the review has now been completed and an action plan was agreed. The actions were already in progress for the most part, and so it is unlikely that had the Council agreed to a review request sooner, it would have resulted in different action, nor that it wrongly refusing the earlier requests meant that Mrs K was subject to behaviour that would have been remedied earlier. In short, it is unlikely that the Council would have taken any different action to tackle the ASB, had it handled the ASB investigation without fault.

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Agreed action

46. The Council will within one month of the date of this decision:
• Apologise to Mrs K for its shortcomings.
• Share this decision, and the Ombudsman’s focus report ‘Out of Order: learning lessons from complaints about antisocial behaviour’ with relevant staff.
47. The Council will within three months of the date of this decision:
• Review its policies on ASB and the ASB case review, as well as the information published online, to make sure these accord with each other and with the law and statutory guidance, (particularly with regard to the threshold for the ASB case review and how these are conducted, and with regard to how the Council considers its powers fully).
• Share the new policy and published information with staff so that they are clear on the Council’s responsibilities and processes.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. There was fault causing injustice.

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Investigator's decision on behalf of the Ombudsman