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East Staffordshire Borough Council (17 006 487)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 07 Mar 2018

The Ombudsman's final decision:

Summary: The Council acted without fault in considering complaints of noise nuisance and in exercising its judgement to impose limits on a resident reporting noise nuisance.

The complaint

  1. The complaint is when responding to complaints about noise causing disturbance by neighbours the Council failed to:
    • Properly consider complaints of noise nuisance;
    • Take prompt action to identify noise nuisance;
    • Consider all is powers to control activity on the highway.
  2. The complainant, whom I shall refer to as Mr X, says this means he has experienced noise nuisance disturbing his sleep and enjoyment of his home without any help at controlling it from the Council. Mr X wants the Council to take action. Mr X also believes the Council has been unreasonable in banning him from contacting its officers.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the Council reached the decision. (Local Government Act 1974, section 34(3), as amended)
  3. If satisfied with a council’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)
  4. 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)
  5. Therefore, I have not considered how the Council dealt with complaints it received from Mr X in 2011, 2013, or 2015 because these are classed as late complaints.

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How I considered this complaint

  1. In considering this complaint I have:
    • Spoken with Mr X and read the information provided with his complaint and since the investigation began;
    • Put enquiries to the Council and reviewed its response;
    • Researched the relevant law, guidance and policies;
    • Shared with Mr X and the Council my draft decision and reflected on any comments received.

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What I found

  1. Councils have power to issue abatement notices if satisfied someone is causing a statutory noise nuisance. They also have powers to deal with anti-social behaviour.
  2. To count as a ‘statutory nuisance’ the noise must do one of the following:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises;
    • Injure health or be likely to injure health.
  3. The statutory nuisance must be witnessed by an environmental health officer and he or she will come to an independent judgement on whether the noise meets the criteria. To help officers decide when it may be best to visit to gather evidence of the nuisance complainants may be asked to fill in diary sheets. Or use council noise recording machines.
  4. It is for the decision maker, such as the environmental health officer, to decide using their professional judgement if a nuisance exists. The officer must then decide if in line with government guidance issuing an abatement notice is proportionate to the alleged harm caused by the nuisance. It does not always follow therefore that a noise nuisance will result in formal action. The Council must consider if issuing a notice is proportionate and that it has evidence that would convince the courts a nuisance exists.
  5. Using the public highway to carry out a business such as car repairs is subject to control under the Clean Neighbourhoods Environment Act 2005 which the Council enforces. The highways authority, Staffordshire County Council also has powers but Mr X has not complained to the County Council and has not complained to me about the County Council.

Limiting contact with complainants

  1. The Council’s policy says that it may limit ‘unreasonable complainant’s’ contact with officers and councillors. “Unreasonable complainants” the policy defines as people who because of their frequency of contact consume scarce human resources the Council could otherwise use to further Council priorities. The Chief Executive decides whether the contact is unreasonable usually following a warning letter. The Policy says any limits should be appropriate and proportionate. They may include:
    • Allowing contact in a particular form (e.g. by letter);
    • Contact only through a named officer;
    • Restricting telephone calls to named days or times;
    • Asking the complainant to enter an agreement about future contacts with the Council.
  2. Complainants may challenge any decision to restrict their access to the Council by asking for a review within seven days of the decision. They must explain why they believed they have not acted unreasonably.
  3. The decision will be reviewed every six months.

What happened

  1. Between March and May 2017 Mr X who says he has experienced nuisance from his neighbours for some time, complained to the Council about nuisance he experienced during those months. He says it has continued. The Council’s records show he complained about:
    • Banging noises over several days waking him up but only lasting a few minutes;
    • Car revving and loud music at 7.00am;
    • Do It Yourself type noise and arguing;
    • Playing of loud music in the garden.
  2. Mr X says these noises have been consistently experienced day and night. The worst and the ones he most objects to, are disturbances late at night or early morning around 5.00am disturbing his sleep. His concern is the neighbour deliberately targets him when making the noise. Mr X says the Council refuses to stop the noise.
  3. The Council says it has not visited Mr X’s home to witness the nuisance because before it could do so, Mr X asked them to close each investigation and so the Council took no further action. The Council says this has happened on several occasions. It also says when offered noise recording equipment Mr X asked the Council to close the investigation and so he did not take up the offer.
  4. The Council says it asked Mr X to keep diary sheets and to describe the activity which is causing him to lose sleep. The noise reported has not been witnessed by officers. However, the Council says from the descriptions in his diary notes Mr X has described noise expected from daily life. That is noise from use of the house and garden, such as Do It Yourself repairs, closing car doors, starting of car engines or car engines running, family use of the garden and playing music. Mr X says the neighbour deliberately causes noises such as leaving the car engine running late at night, or early in the morning, to annoy and disturb him. Mr X objects to the noise caused by his neighbour carrying out repairs to cars outside his house on the public highway. In commenting on my draft decision Mr X says the Council says he complained about children playing in the garden: he did not. He says he complained about fights between children and children screaming at the top of their voices. This happened regularly Mr X says and disturbed his enjoyment of his home and garden. The Council says children arguing and making noise is part of everyday noise. What Mr X experienced in its view is not statutory nuisance.
  5. Mr X says when he called the Police they told him the Council should remove cars under commercial repair on the highway. The Council says when it responded to reports of car repairs it found the neighbour repairing his own car. Mr X says CCTV evidence shows the cars belonged to the neighbour’s tenant. Mr X says the Police told him only emergency repairs are permitted on the highway. The Council decided it could not take action against the neighbour.
  6. The Police told the Council in August 2017 they had received complaints about Mr X’s neighbours but have not found the neighbours to be acting unlawfully so they could not address Mr X’s concerns.
  7. The noises reported by Mr X the Council says are sporadic, not un-reasonable in nature and for limited periods: all of which means they do not constitute a statutory nuisance. The Council says it has not taken enforcement action because Mr X has not allowed it to complete any of its investigations, although Mr X denies this. Therefore, it has not visited the site or set up recording equipment for Mr X to use. It could only move to enforcement proceedings if satisfied a nuisance had taken place and that enforcement action rather than contacting the neighbour was the proportionate action. Mr X has challenged the Council’s view on noise nuisance and the repairs of cars on the highway.

Unreasonable behaviour

  1. Mr X contacted the Council when disturbed by his neighbours and challenged the Council’s view of his concerns. In June 2017, the Council banned Mr X for six months from contacting the Council about further noise nuisance and enforcement using its policy entitled ‘Dealing with Unreasonable Complaints and Unacceptable Behaviour’.
  2. The Council says despite the ban Mr X continued to contact officers. Mr X says he continues to experience noise nuisance and needs to report it. Mr X says he has not contacted officers in contravention of the ban. He also says the Council did not specify whether he was banned from complaints about planning or noise nuisance enforcement.
  3. When deciding to exercise its power to limit contact the Council considered the frequency of Mr X’s contact during its noise nuisance investigations and continued contact once the complaint process had finished. The Council says it will review the ban every six months and extend it if Mr X continues to contact the Council about the same issues. It reviewed the ban in January 2018 shortly after the six-month period ended in December 2017 and extended it. Mr X says this is wrong but it is not part of the complaint I am considering. He may complain to the Council about that decision and ask it to explain how it decided to extend the ban.
  4. Mr X says the Council acted unreasonably. He asks how can he report nuisance which the Council has a duty to consider when it refuses to allow him to contact officers? He complained to his local councillor who he says told him excessive contact would be telephoning every day or several times a day. The Council says it judged Mr X’s contact as excessive because he called to report the same or similar nuisances which the Council had already told him would not meet the statutory nuisance test. In its view Mr X had already had its judgement and nothing could be achieved by continuing the contact. Current noise reported by Mr X it believes is more of the same type of ordinary daily living noises and so not a statutory nuisance.

Analysis – has there been fault leading to injustice?

Noise nuisance complaints

  1. My role is not to decide if Mr X has been disturbed by a statutory noise nuisance but to decide if the Council acted without fault in investigating his concerns. If a council discovers a statutory nuisance it must serve an abatement notice if that is a proportionate remedy. However, for that to succeed if challenged the Council must have evidence to support its case in court. First it needs to decide whether the noise is a statutory nuisance.
  2. Mr X says he continued to be disturbed by noise and contacted the Council hoping the frequency of the noises meant it could help him. The Council can only help someone experiencing nuisance if they provide diary sheets and accept recording equipment that may help officers witness the noise and decide if it amounts to a statutory nuisance. The Council examined Mr X’s description of the noises and found though some took place late at night or early in the morning the noise amounted to ordinary everyday living noises.
  3. The Council exercised professional judgement on the limited information it received from Mr X without fault. Had he not asked the Council to stop its investigations officers may have gathered more information say through leaving recording equipment with Mr X or witnessed the noise leading to formal action. It is the Council’s view the noises described and recorded in diary sheets even had it used recording equipment are unlikely to meet the statutory nuisance test. It is unlikely further investigation would have resulted in formal action stopping the noise or preventing the vehicle repairs on the highway.

Restricting Mr X’s contact with the Council

  1. Mr X says he cannot report current nuisance because the Council has refused to allow him contact. Limiting contact should be rare. The question for me is has the Council considered all relevant information when deciding to impose a ban? This does not include its decision to extend the ban in January 2018 but it may wish to explain its reasons to Mr X because he is clearly puzzled by it.
  2. The Council considered the frequency of Mr X’s contact during its noise nuisance investigations, the complaints procedure and following the final decision on the complaints when deciding if the contact was excessive. It is not possible to say when the criteria for unreasonable contact will be met. We cannot say to be unreasonable you must call every day, or several times a day (although that may be an example) it depends on the nature of the contact and whether all reasonable steps have been taken to address the concerns. It is a matter of judgement.
  3. The Council told Mr X why it believed the type of noise complained of, its sporadic occurrence and times it occurred meant it was unlikely to be a statutory nuisance. Therefore, it would not investigate any complaints about similar noises. Mr X did not accept the Council’s view and continued to report similar noises and disturbances. The Council and Mr X differ in their judgement of the nuisance.
  4. I understand why Mr X believes the Council unfairly used its power to limit his access given he believes he still experiences actionable noise nuisance. The Council decided to limit contact having considered all relevant information. Therefore, I cannot challenge it.
  5. The Council will review the ban periodically. It did so in January 2018 and extended it, Mr X says improperly. To resolve that concern I urge the Council to consider reviewing its decision again on completion of this investigation. The Council may consider inviting Mr X to put forward examples of the recent noises he has experienced, to see if it believes as it did before that these are not noises upon which it could start enforcement action. The Council could then confirm that it would not investigate new instances of similar noise nuisance and explain continued reports would result in the ban being imposed again or extended. Mr X is free to contact the Council with complaints about other services or different action that may be a statutory nuisance. The Council should consider any complaint Mr X makes about its extension of the ban in January 2018.

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Final decision

  1. I find the Council acted without fault in considering complaints of noise nuisance and in exercising its judgement to impose limits on contact with officers.

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Investigator's decision on behalf of the Ombudsman

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