Summary: The complainant says the Council has taken too long to issue an abatement notice to stop the noise nuisance caused by his neighbour. The Council says it visited the complainant’s home and liaised with the landlord over possible causes giving the landlord time to resolve the issues. The Ombudsman finds the Council at fault for delay in deciding if a statutory noise nuisance exists and what it should do to stop or reduce it.

The complaint

1. The complainant, whom I shall refer to as Mr X, says the Council failed to:
• Properly exercise its enforcement powers to stop noise nuisance and anti-social behaviour caused by his neighbour;
• Take timely action resulting delays that resulted in the neighbour’s behaviour to continue severely impacting on Mr X’s life and health.
2. Mr X says he wants the Council to take action, stop the noise nuisance and anti-social behaviour and recognise its delay and provide a remedy for that.

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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 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)
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 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

7. In considering this complaint I have:
• Spoken with Mr X, and read the information contained in his complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance and policy;
• Shared with Mr X and the Council my draft decision and reflected on any comments received.

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What I found

8. Councils have power to issue notices and prosecute those who create statutory noise nuisance under the Environmental Protection Act 1990. For a noise to count as statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a person’s home, or other premises;
• Injure health or be likely to injure health.
9. Usually the Council’s Environmental Health Officer must witness the alleged statutory nuisance. The officer will need to come to an independent judgement having considered the level, duration, timing and location of the noise.
10. Where the Environmental Health Officer decides there is a statutory nuisance, councils must serve an abatement notice. This says whoever is responsible must stop or restrict the noise. If they do not, they may face prosecution and a fine. Abatement notices carry the right of an appeal to the Magistrate’s Court.
11. The Housing Health and Safety Rating says all councils must assess the potential risks to the physical and mental health and safety of occupants from exposure to noise inside a home. This includes from exposure to noise in the home caused by the lack of enough sound insulation. If the assessment identifies a Category 1 hazard then the Council must act to reduce it.
12. The Housing Health and Safety Rating System Operating Guidance say:

“14.20 The assessment should concentrate on the ability of the dwelling to protect the occupants from noise penetrating from outside the dwelling. The design and construction of the dwelling should protect the occupants from ordinary domestic noise from one dwelling entering another, and from traffic or other ambient external noise.”

“14.22 Noise from unreasonable behaviour of neighbours (whether domestic or commercial) should not be included in the assessment, although this could be the subject of other action.”

13. Under the Anti-Social Behaviour Crime and Policing Act 2014 the Council may issue a community protection notice to an individual aged 16 or over if satisfied on reasonable grounds that:
• The conduct of the individual is having a detrimental effect of a persistent or continuing nature, on the quality of the life of those in the locality and;
• The conduct is unreasonable. (Anti-Social Behaviour Crime and Policing Act 2014, section 43).
14. Any fault on the landlord’s part in enforcing a tenant’s covenants is a matter for the Housing Ombudsman and Mr X has complained to that body.

What happened

15. Mr X lives in a building containing several flats. In December 2017, Mr X complained to the Council about the noise caused by his neighbour. Mr X told the Council he had had been complaining to the Council for several months and officers had not addressed his concerns. In commenting on my draft decision, the Council says its records show Mr X first complained about noise on 7 December 2017, not earlier. Mr X told the Council the noise had a major impact on his health. Following a discussion with a Council officer Mr X confirmed on 18 January 2018 he wanted the Council to contact his neighbour. The Council issued a Community Protection Warning letter on 19 January 2018.
16. In response to that letter the Council says an occupant of the flat told the Council the noise is due to the floor structure and poor insulation. The Council received a copy of a letter sent to the landlord by a surveyor advising the landlord to enforce the covenant by the tenant to keep floors covered with soft floor coverings such as carpets.
17. The Council’s officers visited Mr X’s home and carried out a noise test in February 2018. In the officer’s judgement, the noise Mr X complained of arose because of the condition of the floor and possible lack of insulation as well as the lack of soft floor coverings. The Council says it explained to Mr X it would not take enforcement action until the landlord had examined the floor and insulation. Once the landlord had carried out an inspection and undertaken any necessary work the Council could then consider if any remaining noise met the threshold for statutory noise nuisance.
18. Having contacted the landlord, the Council says it received confirmation the landlord had told its tenant to provide soft floor coverings to reduce noise. However, the Council says after that the original landlord did not engage with the Council. The Council said in its response to my enquiries that it believed the landlord should take the lead because under the tenancy agreement it could take legal action to ensure the tenant put down the right floor covering. In the officer’s judgement, this would reduce the noise and then allow them to judge if any remaining noise amounted to statutory noise nuisance. Normal household noises such as walking around or doing housework will rarely cross the threshold for a statutory nuisance. However, the Council says it could not come to a final judgement until the landlord had either carried out structural work to stop the noise or enforced the covenant to keep the floors covered with soft floor coverings.
19. The Environmental Health Officers when visiting Mr X’s neighbour’s home say they had no reason to believe the neighbouring tenants had behaved unreasonably or had deliberately caused noise nuisance. Officers found no evidence of equipment that might cause the noise complained of.
20. The Council followed up the lack of progress in December 2018 only to be told by the landlord it had transferred ownership of the property to a new landlord. The Council contacted the new landlord for confirmation on what action it would now take.
21. In response to my enquiries, the Council quotes case law on the use of powers under the Environmental Protection Act 1990. The Council says case law shows it cannot use abatement notices to remedy the lack of sound insulation between homes leading to noise nuisance. Therefore, in the Council’s judgement it could not help Mr X until the landlord had carried out any repairs or enforced the tenancy’s conditions.
22. In December 2018, the Council responded to separate new allegations from Mr X about noise nuisance. Mr X said he had experienced a banging noise which arose he believed from the use of machinery and not because of the floor issue. The Council responded by providing noise recording equipment at Mr X’s home for five days. Its analysis of the recordings decided it had no evidence of a statutory noise nuisance. The Council says this action shows it is willing to act. Mr X says the Council refused to leave sound recording equipment for him to continue monitoring the noise which he believes his neighbour had reduced because the neighbour knew about the noise recording.
23. The Council says a different department enforces its powers under the Housing Health and Safety Rating System. That department gives priority to the most severe cases and when Mr X complained to that department it passed the issue back to Environmental Health. The Council says an investigation using these powers would not help because the Council may only use its powers to remedy faults in the complainant’s home rather than in the neighbour’s home.
24. Mr X says the Council has left him without any help in stopping the noise nuisance that affects him daily causing his health to suffer. In commenting on my draft decision Mr X says the impact on his health has been severe. Mr X says the frequency of the sound including what he describes as the relentless stamping, jumping and banging from above causes him to lose concentration with the pressure. He has often had to leave his home to gain relief. Mr X believes the Council has failed to recognise he is the victim of unwarranted behaviour and the severity of its impact on his health and wellbeing. Mr X has lost confidence in the Council’s ability or intention of remedying the situation. Mr X says the Council failed to carry out unannounced visits where officers may have witnessed a statutory noise nuisance.

Analysis – has there been fault leading to an injustice?

25. My role is to consider how the Council considered using its powers to stop any statutory noise nuisance. It is not to decide if a noise nuisance existed or whether the Council should issue an abatement notice. However, if I find the Council at fault in its consideration of its powers, I can ask the Council to review its decision and look again at what has happened.
26. The Council responded to the complaint of noise nuisance by sending officers to visit and judge whether they could identify a statutory noise nuisance. It is a subjective test and the professional officer must exercise his or her own judgement based on training and experience. The courts have ruled normal everyday noises depending on the time of day will not usually be considered statutory noise nuisance. Officers detected noises but believed the faults in the floor may be the cause and the lack of soft carpeting which would soften or reduce the noise heard in Mr X’s home. Officers felt unable to say if the noises heard amounted to a statutory noise nuisance without first enabling the landlord to consider if it could carry out repair work or enforce the tenancy conditions. The Council believed the landlord better placed with stronger legal powers to deal with the issue. It decided therefore, to allow the landlord to act as lead.
27. The landlord having at first engaged with the Council then stopped doing so. Despite several reminders the Council received no responses about what work the landlord intended to carry out. The Council says the new landlord has told the Council it is dealing with the floor issues.
28. The Council should have set a deadline for deciding if it had enough evidence to warrant the further use of recording equipment or close the case. The delay in deciding what to do left Mr X in limbo and living with the noise he believes is a statutory noise nuisance. I find the Council at fault for not giving a deadline and offering noise recording equipment earlier.
29. The Council offered noise recording equipment to record the mechanical noises about which Mr X later complained. It says the investigation although not complete had at first decided the noises did not meet the threshold for a statutory noise nuisance. Mr X may not agree or accept that judgement but at least he has a judgement on the noise complained of. The Council should have ensured it made and shared with Mr X a judgement on the original noise.
30. Any abatement notice may include directing the recipient to take specific action. However, the Council has referred to case law that says the Council cannot use an abatement notice to have repairs carried out. In response to my draft decision the Council says it considered the tenancy agreement conditions covered the issue. Therefore, in its view the landlord exercising its powers would be the most appropriate way to resolve the case. The Council did not however place on its file a review date for considering further action if the landlord failed to act.
31. Mr X had to complain direct to the separate department before the Council considered if it could use its alternative powers under the Health and Safety Rating System. Mr X said when visited by the Environmental Health Officers he wondered if the property lacked enough sound insulation. The Council should have then considered making a referral to the Council department which enforces those regulations. I accept usually any investigation concerns the property of the individual making the complaint and not neighbouring properties. However, that is something the Council could have explored further. I find the Council at fault for not having referred those concerns to the proper department for advice thus putting Mr X to the trouble of making a complaint direct to that department.
32. An abatement notice served on Mr X’s neighbours may not be successful if the neighbour successfully appealed to the Magistrate’s Court. First the officers must decide if the noise is a statutory nuisance. The view taken by the professional officers on the original complaint and the second about mechanical noise is the noises did not cross the threshold of a statutory nuisance. I find the Council’s delay resulted in Mr X waiting too long for a decision on whether the noise from his neighbours crossed the threshold of statutory nuisance. The injustice to Mr X is he had to wait for too long before the Council gave him a view on the noise he continued to experience. This raised his hopes the Council may serve a notice on his neighbour if the landlord failed to repair the floor, enforce its tenancy agreement on soft floor coverings and not causing a nuisance to other tenants.

Recommended and agreed action

33. To remedy the injustice caused to Mr X I recommend, and the Council agrees to, within four weeks of my final decision:
• Apologise to Mr X;
• Pay to Mr X £200 in recognition of the time, distress and inconvenience caused by the delay in completing the investigation;
• Consider visiting Mr X, repeating recent offers to provide recording equipment (which it says Mr X has recently refused in March and May 2019) and following the results of any noise recording decide whether to serve an abatement notice.

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Final decision

34. In completing my investigation, I find the Council at fault causing injustice for which I have recommended a remedy.

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Investigator's decision on behalf of the Ombudsman