Summary: Miss J complains about the council’s delay in dealing with noise nuisance from her neighbour. The Ombudsman cannot criticise the Council’s view that the evidence it had was not sufficient for it to take action. We have found some shortcomings in the Council’s actions, but not enough to make a finding of fault.

The complaint

1. The complainant, whom I shall describe as Miss J, complains the Council has delayed, by two and a half years, taking action against their neighbour for noise nuisance.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss J;
• made enquiries of the Council and considered its response;
• spoken to Miss J;
• sent my draft decision to Miss J and the Council and considered their responses.

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What I found

Legal and administrative background

Environmental Protection Act 1990

6. The Council’s Environmental Health Partnership provides a service to investigate complaints of statutory nuisance. The statutory provisions relating to nuisance can be found in the Environmental Protection Act 1990. Noise can amount to a statutory nuisance. The Act says councils must carry out reasonably practicable investigations into alleged statutory nuisance.
7. There is no set level at which noise becomes a nuisance. An environmental health officer will come to an independent judgment on whether noise amounts to a ‘statutory noise nuisance’, based on level, length, timing and location of the noise. A statutory nuisance is something that causes a serious and unreasonable interference to enjoyment of property, or causes damages to health. Statutory nuisance is a criminal offence.
8. It is solely the council officer’s decision whether or not a noise amounts to a legally actionable nuisance. A complainant may have a very strongly held and opposing view about the level of the nuisance and its impact on their health and wellbeing. However the law is clear that the decision about this is for the officer alone to make.
9. If a council decides there has been a statutory nuisance it can take certain actions. One option is to serve an abatement notice, requiring action to stop the noise. To take enforcement action for a breach of a notice, a council must prove ‘beyond reasonable doubt’ there is a nuisance that has breached the notice. This is because breaching a notice is a criminal offence.
10. Councils can decide to take informal action, if the noise complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance, or suggest mediation.

The Council’s procedures

11. The Council has its own Statutory Nuisance Procedure. This instructs officers to ensure the Council can rely on evidence and that it stands up to scrutiny. It notes the procedure is not prescriptive and gives discretion for officers to depart from it, if there is rationale for doing so.
12. The Environmental Health Partnership has a General Service Request Procedure. This notes that, in most cases, officers should carry out three rounds of investigative actions. If those investigations do not produce evidence of a problem, the team should consider whether to close the case.

Anti-social Behaviour, Crime and Policing Act 2014

13. The Anti-social Behaviour, Crime and Policing Act 2014 gives councils powers to issue community protection notices. To issue a notice, a council must be satisfied, on ‘reasonable grounds’, the conduct of an individual is unreasonable. And that their actions are having a detrimental, persistent, or continuing effect on the quality of life of people in the locality.
14. Before issuing a notice, a council must serve a written warning. The council must tell the person what acceptable behaviour is. The notice can require a person to stop doing specific things, and/or to take reasonable steps to achieve specific results. The Act gives an individual a right of appeal against a notice. It also gives councils a range of powers, when perpetrators do not comply with a notice.

What happened

15. Miss J and her partner moved into their house in September 2016. In June 2017 they first complained to the Council about loud music from their next-door neighbour (whom I shall refer to as Mr K).
16. In early July, a Council Environmental Protection Officer and an Officer from its Community Safety Unit met Miss J and her partner, with a police support officer. The Council advised Miss J to keep diary sheets. It also sent letters to neighbouring houses, seeking other evidence.
17. On 11 July the officers visited Mr K. They noted DJ equipment in his living room. They advised him about the complaints the Council had received. The Council wrote to Mr K warning him about the possible action the Council could take if it witnessed noise that amounted to a nuisance.
18. The Council’s records note the situation improved for about a month afterwards. But then noise started again. Miss J and her partner also reported abusive language from Mr K. The Council decided that, under no circumstances, were its officers to undertake lone visits to either Mr K or Miss J’s houses.
19. The Environmental Health team installed noise recording equipment in Miss J’s Home. The Community Safety Unit wrote to Mr K acknowledging the situation had got better. But it asked him to a meeting to discuss how they could work together. Mr K advised he was too busy to attend. So the Council sent him a warning letter that the Council might issue a community protection notice. It asked him to stop playing music at a level that caused nuisance to neighbours.
20. Towards the end of September, the Council’s Environmental Health team closed its file, as the noise recordings Miss J had sent back did not provide evidence of any noise that amounted to a statutory nuisance.
21. But at the end of October an Environmental Protection Officer (Officer 1) visited Miss J, after a new complaint of noise. He did witness noise that, in his opinion, amounted a nuisance. So on 2 November, he served Mr K an abatement notice. The Community Safety Unit also served a community protection notice. The Council says Officer 1’s lone visit was against management instructions and should not have taken place.
22. The Council does not have any reports of noise amounting to a nuisance in the time after this. Miss J did send in some recordings of noise from the Christmas period. The Council’s view was they did not provide sufficient evidence of a nuisance.
23. In early 2018 Officer 1 was in contact with Miss J about the reasons why lone officers could not visit. This meant Miss J could not report matters to the Council’s out of hours service, as it was staffed by a lone officer.
24. From April 2018 Officer 1 advised Miss J that he was not confident that the evidence the Council had was enough for prosecution, or seizing the noise making equipment. He was liaising with an officer in the Council’s Community Safety Unit (Officer 2) about the possibility of that team acting on the community protection notice it had served Mr K.
25. Towards the end of May, Officer 1 advised Miss J that Officer 2 had told Mr K the Council was taking legal advice about action for the breach of the community protection notice.
26. The Council’s records show the Community Support Unit’s legal advice was that an abatement notice was the best option. But the Environmental Health team wanted to first try mediation. Officer 1’s early June record of the reasoning behind trying mediation was:
• To attempt to re-establish contact between the households, so Miss J and her partner could approach/text Mr K, if they felt the music was too loud.
• Alternatively, working out a role for the out of hours officer to call Mr K, if Miss J contacted that team.
• If these did not work as solutions, having tried mediation would strengthen a prosecution case, as it would show the Council had tried to do all it possibly could to reason with Mr K.
27. The Council’s files have notes of further complaints after this. It says this meant that mediation was not appropriate, as it had re-started a criminal investigation. It installed noise recording equipment into Miss J’s home. In August Officer 1 advised Miss J and her partner that the recordings they had made gave him concerns that a court would not view the recordings as strong enough evidence that Mr K was causing a statutory nuisance. He also noted Mr K appeared to be ‘making an effort’ to reduce the overall volume level and reduce the volume later in the evening.
28. The Council installed noise recording equipment again, including twice in October. The recordings did not provide enough evidence of a statutory nuisance, or a breach of the abatement notice.
29. In November Officer 1 made a note on the Council’s files that his view was Mr K still occasionally ‘overstepped the mark’. But there had been improvements. So he suggested trying to re-open some sort of communication between all parties; possibly involving mediation. His view was “…we need a change of approach as it has not been possible to gather sufficient evidence despite numerous attempts with noise recorders”.
30. The records suggest an improvement after this. But in early January 2019, Mr K played music at night. Miss J’s partner knocked on Mr K’s door, when Mr K assaulted him. Police were involved. The Council’s view was that, after this, mediation was no longer an option.
31. Towards the end of January, the Council says its view was it had investigated as far as was reasonably practicable. It says it advised Miss J and her partner of this.
32. In February Miss J made a complaint about the Council’s handling of the noise complaints. The Council’s response outlined the steps it had taken. But it had not been able to gather enough evidence. So it did not uphold the complaint. It referred Miss J to the Ombudsman.
33. In April the Council says it received complaints of noise, over three consecutive evenings, about Mr K. And later in the month, five complaints from four addresses. The police were involved and referred complaints to the Council’s Community Support Unit. The Council’s Environmental Health team’s view was this was an escalation in the level and frequency of the noise disturbance.
34. During May the Council wrote to residents seeking evidence. A school complained. And an officer witnessed loud music. On 22 May the Community Protection Unit sent Mr K a warning letter.
35. The Council installed noise recording equipment. But its analysis of the recordings did not, in its view, provide sufficient evidence to prove a breach of the abatement notice.
36. At the end of June, the Council’s Community Support Unit issued Mr K with a community protection notice. Over the next few months the Council received evidence to show a breach of the notice. So in August it seized Mr K’s sound equipment, after the court granted a warrant.
37. In response to my enquiries the Council noted:
• “the case was characterised by sporadic incidents of noise (incidents usually on one or two consecutive days which resulted in complaints from immediate neighbours) followed by extended periods where the noise had not been demonstrably unreasonable”.
• It installed noise recording equipment seven times, over a total of 138 days, in adjacent properties. The recordings did not provide the necessary evidence to show an ongoing statutory nuisance.

Was there fault by the Council?

38. My view is the Council initially took appropriate action to respond to Miss J’s reports. It carried out a site visit (albeit against management instruction) that led it to conclude, initially, there was a statutory nuisance. But its later investigations undermined that conclusion, as recordings did not show noise, that in the officers’ opinion, amounted to a nuisance. I see no evidence of fault in how it reached that view. So the Ombudsman cannot question the professional judgement of officers about whether the evidence was strong enough to consider legal action.
39. This investigation was protracted partly due to the sporadic nature of the noise. The Council did later consider some other options, including mediation. The lack of contemporaneous records to explain the Council’s change of heart regarding mediation is a shortcoming in the evidence. But then events moved on. The Council’s response to my draft decision has persuaded me those later events meant mediation was no longer appropriate. So my view is the missing record is not enough to make a formal finding of fault. But the Council has agreed to make a £100 goodwill payment to Miss J, as a symbolic recognition of the uncertainty this gap in the record might have caused her.
40. The evidence suggests that, from April 2019, the situation worsened. More neighbours and a school started complaining about noise, it seems, over more prolonged periods. The Council then took action that in my view was appropriate. I do not have the evidence to conclude the Council delayed taking formal action.

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Final decision

41. I have made a finding of no fault and completed my investigation because of the Council’s response to my draft decision.

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Investigator's decision on behalf of the Ombudsman