Summary: Miss X complains about a lack of action from the Council following its decision to issue an Abatement Notice to her neighbour. We have concluded our investigation having made a finding of fault. The evidence demonstrates excess delay in reaching a decision on what further action to take, if any. This caused Miss X an injustice and the Council has agreed to our recommendations.

The complaint

1. Miss X complains about a lack of action from the Council following its decision to issue an abatement notice to her neighbour. Miss X says she has provided the Council with further information and evidence of ongoing noise disturbance since the abatement notice was issued to little avail. Delay has caused Miss X frustration and uncertainty and Miss X would like the Council to reach a decision on what action it intends to take.

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The Ombudsman’s role and powers

2. 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

3. I considered the information provided by Miss X and the Council. This includes the Council’s case notes, guidance and policies which underpin this subject area and other relevant documents. I offered Miss X and the Council an opportunity to comment on my draft decision and considered all comments submitted before making a final decision.

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What I found

Relevant guidance and legislation:

Statutory nuisances

4. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
5. Activities a council might decide are a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.
6. 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 property; and/or
• injure health or be likely to injure health.
7. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
8. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
9. 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.

Abatement notices

10. If a 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 issuing an abatement notice for a short period, to try to address the problem informally.
11. 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.

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What happened

12. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.

Background

13. The Council issued an abatement notice to Miss X’s neighbour in January 2024.
14. In January 2024, February 2024, and March 2024, further monitoring was undertaken using the Noise App, and noise recording equipment installed by the Council.

Events thereafter

15. In early March 2024, it is noted by the Council that the investigating officer was satisfied they had sufficient evidence to refer the matter to the Council’s solicitors, for the consideration of legal proceedings for the breach of an Abatement Notice.
16. Some days later, the Council referred the matter to its Legal Team, where a request for the relevant documents, notices served and evidence of breaches was made. The Council says that although some information was supplied to the Legal Team, not all was – and further information was requested but no further information supplied to the Legal Team. The Council says its Environmental Health Team did not follow up with the request from its Legal Team in a reasonable time.
17. Later in March 2024, the Council continued to review the noise recordings provided by Miss X.
18. At the end of March 2024, the Council sent Miss X a noise diary to complete.
19. In April 2024, Miss X provided the Council with the completed noise diary.
20. At the end of April 2024, the Council continued to review the noise recordings provided by Miss X. The Council notes several instances that likely constitute a breach of the Noise Abatement Notice.
21. In early-May 2024, the Council informed Miss X that the legal process would not be quick and arranged to install sound recording equipment the following day.
22. Some days later, Miss X complained to the Council. Miss X complained about a lack of action by the Council to enforce the Noise Abatement Notice. The Council responded to Miss X, it said there had been a delay as the legal department were very busy. The Council said there was an ongoing discussion with its legal department about whether the information presented by the noise recordings alone meets the evidential standard to prosecute. The Council informed Miss X that it was hopeful that within the next couple of weeks, there would be confirmation of the evidential requirements with a view to instigating legal proceedings.
23. In mid-May 2024, the noise recording equipment was collected.
24. In toward the end of May 2024, Miss X retuned a completed witness statement which the Council requested a week prior.
25. In early-June 2024, the Council reviewed the noise recordings, again noting that the recordings demonstrated further breaches of the Noise Abatement Notice.
26. Toward the end of June 2024, Miss X spoke with the Council, expressing concern with the time taken and a continued absence of action from the Council. The Council informed Miss X that the team was under pressure to deal with a wide range of issues, including those related to noise nuisance. The Council explained that it takes much time to review all the information, including listening to all noise recordings to make a decision on whether they constitute a noise nuisance.
27. In mid-July 2024, the Council continued to review the noise recordings provided by Miss X.

The Ombudsman’s enquiries

28. In September 2024, the Ombudsman made enquiries to the Council. Of note, we asked it for an update of where matters were currently at. In response the Council said it’s legal services has provided information to an Officer, and a decision on whether to take further action on this matter remains under consideration by that team.

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Analysis

29. Once the abatement notice comes into force, the Council should monitor for breaches for a reasonable period. This may include, for example, using noise monitoring equipment again. If a breach is identified, the Council should consider whether it is appropriate to prosecute the perpetrator. This is a matter of professional judgment, and while it is not for us to substitute our view for that of the Council, we may criticise councils if we do not believe they have considered this properly or acted promptly.
30. The evidence shows the Council identified sufficient grounds to consider legal action against breaches of the abatement notice in early March 2024. At that point, the investigating officer referred the matter to the legal team for advice. This was an appropriate and necessary step to ensure the evidential threshold was properly assessed. However, the referral to the legal team appears to have marked the beginning of significant delays. Despite the Council continuing to gather and review evidence, including noise recordings and a diary submitted by Miss X, no decision was reached for several months.
31. We acknowledge that it is essential for the Council’s legal department to ensure the evidential threshold is met before pursuing legal action. This step is crucial to ensure any proceedings are both justified and likely to succeed. However, in this case, the process of reaching that decision appears to have been significantly delayed. Despite the investigating officer’s view in March 2024 that there was sufficient evidence of a breach, progress stalled once the matter was referred to the legal team. The Council has acknowledged that information requested by its Legal Team was not followed up on in a reasonable time.
32. The matter was referred to the Council’s legal department in March 2024, and by the time of the Ombudsman’s enquiries in September 2024, a decision to proceed with legal action remained under consideration. This six-month delay is excessive. We would expect the Council to act promptly in circumstances where breaches have been identified, and the process of legal review should not become a source of unreasonable delay. I see no good reason why the Council could not have reached a decision within three months and here we have made a finding of fault.
33. The prolonged inaction also caused frustration for Miss X, who was not kept adequately informed about the progress of the case. The Council’s explanations, which referenced the workload of its legal team, failed to provide her with any clear timeline or reassurance that the matter was being actively progressed. This lack of communication likely compounded Miss X’s frustration and added to her uncertainty and perception that the Council was not taking the matter seriously.
34. In the absence of a formal decision by the Council on whether to pursue legal action for the breach of the abatement notice, it is difficult to fully assess the extent to which Miss X’s amenity has been impacted. However, the delay in reaching a decision has caused prolonged uncertainty for Miss X, which is an injustice in itself. Should the Council decide to prosecute, it will need to consider the inconvenience caused by the delay, as this could have extended the period during which Miss X experienced noise disturbances without resolution. I have addressed this in my recommended actions below.

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Agreed action

35. To prevent similar events, and to resolve matters in this complaint, the Council has agreed to:
1. Provide an apology to Miss X regarding injustice and fault identified in this complaint.
2. The Council should award Miss X £300 to acknowledge time and trouble in this complaint. This is regarding frustration incurred because of excess delay.
3. The Council should reach a decision on what action it intends to take and inform Miss X of its decision.
4. Should the Council decide to prosecute, it should provide Miss X with a financial remedy of £200 per month of delay, excluding a grace period of three months from March 2024.
5. Proceed with internal training it is identified as part of this investigation. The Council has identified need to carry out updated training with members of the service teams. The Council says the training will cover the information the legal team need to see for the legal team to be able to decide on further action.
36. The Council should complete actions a, b and c within one month of the Ombudsman’s final decision. The Council should complete action d and e within two months of the Ombudsman’s final decision.

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Final decision

37. We have concluded our investigation having made a finding of fault. The evidence demonstrates excess delay in reaching a decision on what further action to take, if any. This caused Miss X an injustice and the Council has accepted our recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman