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Cornwall Council (18 005 115)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 11 Mar 2019

The Ombudsman's final decision:

Summary: Mrs X complains the Council was at fault in the way it dealt with Mrs Y’s concerns about noise and Anti-Social Behaviour caused by a Multi-Use Games Area near to her home. The Ombudsman has found no evidence of fault in the way the Council considered these matters.

The complaint

  1. The complainant whom I shall refer to as Mrs X complains for Mrs Y about the Council’s failure to deal with Mrs Y’s concerns about a nuisance caused by a Multi-Use Games Area (MUGA) near to her home.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are 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)

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How I considered this complaint

  1. I have read the papers submitted by Mrs X and discussed the complaint with her. I considered the Council’s comments about the complaint and the supporting documents it provided. I have explained my draft decision to Mrs X and the Council and considered the comments received.

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What I found

  1. The Council’s ASB policy says officers will try and resolve reported issues of ASB using various means from giving advice to using formal action. They also aim to reduce incidents with actions and early interventions. This can include referrals to other agencies such as the Police. Once the Council receives a complaint it is sent to the appropriate service to deal with.

Events leading to the complaint

  1. Mrs Y moved into accommodation in a small block of flats opposite a park with a MUGA in it in 2017. The MUGA is not directly opposite Mrs Y’s property.
  2. Mrs Y complained to the Council in May 2017 about low level ASB at the MUGA in the evenings namely music, voices and impact noise from balls banging on the back boards. An officer explained the Council could only address the unreasonable use of the court given the nature of the MUGA and agreed to consider if the Council could lock it at night.
  3. The officer found the Council had no resources to arrange to open and close the site daily and told Mrs Y. He advised under case law the Council cannot investigate the use of a site it owns and runs because it cannot serve an abatement notice on itself. So, referred the matter to the ASB Team.
  4. The ASB team told Mrs Y in June 2017 to report incidents as they happened to the Council or the Police if the incident was serious. So, it could see if there was a pattern of behaviour and who the offenders were. The ASB service liaised with the Police who carried out extra patrols of the area. The Public Open Space service agreed to look at physical changes to the MUGA to help matters if considered necessary.
  5. Mrs Y sent a log of nuisance to the ASB officer in July 2017. She explained the distress caused by the noise and activity from the MUGA and disappointment the Council refused her request for a locked gate at night.
  6. The ASB officer and local Police officer visited the site but did not consider there was a significant problem. They met Mrs Y at her home in October 2017, reminded her to report incidents and gave her a leaflet. The Police officer told Mrs Y they found no issues with the MUGA while on regular patrols.
  7. Mrs Y contacted the ASB officer as she felt officers did not take the issue seriously by giving her a leaflet in response. Mrs Y reported another incident of noise from the MUGA. The ASB officer said the leaflets were for Mrs Y to share with neighbours if also affected by noise. And the aim of the meeting was to reassure Mrs Y the ASB team and Police were ready to act if there was any ASB.
  8. The ASB Officer and a local Councillor discussed the issues Mrs Y raised. The Councillor visited the area several times. He reported neither he nor the Police identified a noise problem there. The Councillor said a Public Space officer was considering options and asked B Company to look at the equipment. The Council owns Company B, a contracting company who carry out works on its behalf. B Company reported no significant problems. Public Open Space reported it had not received complaints from other residents who lived nearer to the MUGA.
  9. Mrs X contacted Community Protection in February 2018 for Mrs Y about disturbance from the MUGA. Community Protection sent Mrs Y a noise diary to complete for six to eight weeks. And said it could follow it up by installing noise monitoring equipment at her home to gain evidence in support of mitigation works to the MUGA. Officers visited the MUGA to look at the area and distance between the MUGA and block of flats where Mrs Y lived.
  10. Mrs X complained to the Council in April 2018 about delays, failure to act over the MUGA and the time taken to speak to the right service. Mrs X said officers failed to consider the impact of noise and 24-hour access to the MUGA onto Mrs Y and how the issue affected residents. Mrs X said she understood the MUGA would not now get planning permission due to its closeness to housing.
  11. Mrs X said Mrs Y felt pressured by officers saying she was the only complainant and understood others had also complained. And she felt bullied into being ‘proactive’ and filing in the diary sheets as this affected her mental health issues.
  12. The Council logged the complaint. Once it acknowledges a complaint the Council sends it to the relevant service to respond. Mrs X chased up a response several weeks later and the Council found it had accidentally deleted the complaint.
  13. In May 2018, the ASB officer liaised with officers and the Police who confirmed no further complaints from Mrs Y or other neighbours. The Council apologised to Mrs X for the delay in replying. It explained officers’ actions and the offer of noise monitoring equipment. It said the Public Open Spaces service were contacting the equipment manufacturer about adjustments for sound buffering. And if possible, the Council would consider the cost and how much difference it would make. It said it would not lock the MUGA as it considered it non-viable and not prevent its use.
  14. Mrs X complained to the Community Protection team several weeks later about lack of action and asked for noise dampening works. The officer noted Mrs Y had not returned the diary. Mrs X complained again in June 2018 about the lack of response and expressed concern officers tried to contact Mrs Y when she was distressed by the nuisance. Mrs X alleged officers gave false information about officer visits to the site and lack of other complainants.
  15. Environmental Services offered noise recording equipment even though Mrs Y had not returned the diary. Mrs X declined saying it was too stressful for Mrs Y and too late but attempts to ameliorate the noise would help. Mrs X said again the Council failed to take account of Mrs Y’s mental health issues and impact of the noise.
  16. The Council responded it considered the MUGA an important facility within its Open Space Strategy for residents of the area. Officers had reviewed the panels on the court. The Council agreed to replace one and fit neoprene dampeners on all the panels to help moderate noise created through proper use.
  17. The Council upheld Mrs X’s complaint about its handling of the stage one complaint and accepted a lack of join-up between different services. It considered it led to Mrs Y receiving different messages not always consistent with the Council’s position. It said this raised Mrs Y’s expectations about actions the Council could take, such as locking the MUGA as an option. The Council apologised to Mrs Y.
  18. The Council reviewed the complaint information and said Mrs Y’s diary, now submitted, showed prolonged noise intermittently. But Environmental Services did not consider the information enough for it to take direct action on. The Council said it needed results of noise monitoring to see if there was any action it could take. The Council said it would review its internal procedures for dealing with cross-service complaints, informally monitor the use of the site and respond to further complaints. The Council said its offer to installing noise monitoring equipment at Mrs Y’s house remained available should she wish to pursue it.

The Council’s response to Mrs X’s complaints

  1. The Council says the MUGA has two goals ends set into the existing sports area and has been in place since 2004. It is a former tennis court with a chain link mesh fence, stone retaining wall and a weldmesh fence. The Council says this forms a standard boundary treatment for parks, plays area, schools and sports facilities. It has a ‘Tarmac’ surface due to being considered a suitable hardwearing surface for the court.
  2. The Council says there is no minimum distance set for such features and the site is 24 metres away from the nearest property. Mrs X says the court is about 30 metres away from Mrs Y’s property.
  3. The Council regards the court as ‘youth provision equipment’. While it is in regular use the Council says its visits to the site have shown it is not in constant use. It does consider the provision for young people such as this is important which its regular but not constant use shows. The Council confirms Environment Health inspectors routinely visit the site each week throughout the year and do a monthly inspection. The Council says it carries out maintenance reactively only when there are safety defects.
  4. The Council says a Public Space Officer and an officer from B Company inspected the equipment in October 2017. They concluded the equipment was in reasonable repair but involved the manufacturer. This led to the Council commissioning works to the MUGA to make some improvements. These were to rearrange the panels and fit new spacers and fixings for the metal grilles. The Council aimed to reduce the impact of noise from balls striking the panels. The Council says although the equipment was over 15 years old it did not present an obvious defect and was safe to use. It needed a specialist who worked for the manufacturer to identify possible reasons for the resonance when the court was used.
  5. The Council accepts it has taken some time to arrange the improvement works due to B Company’s availability and delays in receiving the order. The Council says it will review its procedures with B Company and suppliers to speed up such remedial works in the future. The Council completed the works and a Public Space Officer inspected them in October 2018. The officer considered the work acceptable.
  6. The Council confirms it took the issue of Mrs Y’s mental health seriously after Mrs X raised concerns about the impact onto Mrs Y and gained advice from its Adult Social Care team. The view was the Council owed no extra duty of care about the impact of noise outside the property due to Mrs Y’s mental health over the actions already taken. And if necessary it would advise Mrs Y to seek support from a GP and its teams could help with equipment and services for any physical needs.
  7. The Council says Environmental Health Services has no record of any other or previous complainants. The ASB service accepted some early confusion as it treated Mrs X and Mrs Y as one person as they made complaints at the same time. ASB report being unaware of any other complainants.

My assessment

  1. The documents provided by the Council show it has responded to Mrs Y’s concerns about the MUGA. And followed its ASB policy by passing the complaint to the relevant service to deal with as Mrs Y’s complaints were largely about ASB. The documents also show no significant delays in investigating Mrs Y’s concerns and I can find no evidence officers provided false information about visits. This seems to have arisen over a misunderstanding in conversations with Mrs Y.
  2. The Council says it needs more evidence of the problems Mrs Y reports for it to start any action on the alleged ASB. And officers advised Mrs Y of this on a visit to see her. The visit did result in increased Police and officer patrols but these did not find evidence to support Mrs Y’s concerns. So, I do not consider there is evidence of fault by the Council in the way it responded to Mrs Y’s complaints of ASB at the MUGA.
  3. The documents show officers in Environmental Protection responded to Mrs Y’s complaints of noise nuisance even though the Council may not investigate its own facilities. But nonetheless the service sent Mrs Y a diary to complete and offered to install noise monitoring equipment. Mrs X and Mrs Y disagree with the Council’s decision on whether there is a noise nuisance but the decision is a matter of the officers’ professional judgement. The Ombudsman cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there was fault in this case.
  4. This is because there is evidence to show officers visited the site and considered the information Mrs Y provided. The officers did not consider there was enough information to act on. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached this decision from the documents I have seen.
  5. It is unfortunate that Mrs Y felt unable to take up the Council’s offer of the monitoring equipment. But it is usual practice for Councils to offer and install such equipment at a complainant’s property to find out whether there is an issue to be dealt with.
  6. Despite the lack of noise monitoring the documents show the Council agreed to carry out works to the MUGA in response to Mrs Y’s complaints. The Council hopes this will address some of Mrs Y’s concerns. It has accepted the improvement works took some time to commission. While this is unfortunate the Council has not found a statutory nuisance at the site. In addition, the works were not essential due to any safety defects but were improvements. So, I do not consider there are grounds to consider this further. The Council plans to review its procedures with B Company to ensure a quicker response time to remedial works. I consider this suitable action for the Council to take.
  7. Mrs X and Mrs Y consider the Council should not have given planning permission for the MUGA due to being too close to residential properties. The Council granted planning permission for the MUGA in 2004 so this is too long ago for the Ombudsman to consider now. And it was in place when Mrs Y chose to move into her accommodation. The Council has confirmed there is no minimum distance the court should be sited from residential properties. But it is 24 metres to the nearest property and Mrs Y’s property is further away than this.
  8. Mrs X refers to pressure on Mrs Y due to the Council telling her she is the only complainant. Mrs X and Mrs Y dispute she is the only person to complain. The Council’s documents do refer to another complainant during 2017 and Mrs Y as the only complainant in 2018. But I do not consider the issue over the number of complainants causes Mrs Y any injustice. This is because there is an expectation on Mrs Y as a complainant to help provide evidence to support her concerns. So, the Council will ask Mrs Y to carry out noise monitoring to help the Council establish whether it needs to take more action. In addition, the Council has also acted and investigated her complaints.
  9. The Council’s documents show it considered Mrs Y’s mental health issues and dealt with her concerns according to advice from its Adult Social Care services. The Council has accepted it did not handle Mrs Y’s complaint well in April 2018 due to mislaying it and has apologised. It has also accepted that it could have acted better with joining up its responses to Mrs Y’s concerns across the services. And ensure a consistent response on the actions and outcomes available to the Council. It accepts it may have raised Mrs Y’s expectations of a resolution. This is unfortunate but the documents do show the Council’s services responded to and acted on Mrs Y’s concerns. The Council has apologised to Mrs Y and I consider the Council’s apology suitable action for it to take.

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Final decision

  1. I am completing my investigation. I have found no evidence of fault in the way the Council dealt with Mrs Y’s concerns of noise and ASB caused by a MUGA near to her home.

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Investigator's decision on behalf of the Ombudsman

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