Summary: Mrs X complains the Council has not done enough to address her reports of noise coming from her neighbour’s motorbike. We uphold Mrs X’s complaint. The Council did not adequately investigate her noise complaint. The Council has agreed to remedy her injustice.

The complaint

1. Mrs X complains the Council has not done enough about the noise from her neighbour’s motorbike. She says this noise has been a problem for over two years. She says the noise from the bike is affecting her health.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
3. 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

4. I have considered:
• Mrs X’s complaint and supporting information;
• the Council’s responses to Mrs X and to my enquiries;
• information from the Council’s website about noise nuisance;
• the Environmental Protection Act 1990; and
• Anti-social Behaviour, Crime and Policing Act 2014 and Information note: noisy neighbours.
5. Mrs X and the Council commented on my initial and revised draft decisions. I have considered these comments when making my final decision.

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What I found

6. Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990). For the noise to count as a statutory nuisance it 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.
7. Councils have separate powers to deal with anti-social noise. The Anti-social Behaviour, Crime and Policing Act 2014 has introduced a number of powers that local authorities can use to tackle anti-social noise swiftly and effectively.

What happened

8. Mrs X first contacted the Council about the noise from her neighbour’s motorbike in September 2016. She said that the neighbour rides his bike through his porch to store it in the back garden. She said this action made her house vibrate. Earlier in the year she had written to her neighbour and tried to speak to him about the noise.
9. The Council said it wrote a generic letter to the neighbour and spoke to him about the bike noise. The neighbour told the officer that he only used the bike at weekends and had discussed this with Mrs X. He said he would fit an anchor in his driveway to secure the bike. This would mean he would not drive it through the porch.
10. In October 2016, Mrs X involved her local MP when she had not heard from the Council. The Council responded to the MP. It apologised for not contacting Mrs X directly. The officer had assumed that Mrs X and her neighbour had resolved the issue.
11. In early 2017, Mrs X contacted the Council. She complained her neighbour had not fitted an anchor in his driveway and the noise was still a problem. The Council contacted the neighbour. He said the anchor would be fitted in due course.
12. In November 2017, Mrs X contacted the Council again. She gave specific details about the dates and lengths of time the motorbike was running in her neighbour’s back garden. She also explained that the noise was affecting her health due to a lung condition. Records show the Council called Mrs X to discuss this issue. However, there was no answer and no message facility. The Council did not try to call Mrs X again.
13. Mrs X complained to the Council again January 2018. She said the only time she received a response from the Council was when she involved her MP. The Council said it spoke to Mrs X. It also said it sent another generic letter and spoke to the neighbour. He said he only used the bike in the summer. He also said he occasionally starts it up to check it when it when it had been standing for long periods.
14. In October 2018, Mrs X complained again to the Council. She specifically requested a written response as she wished to escalate the complaint.
15. A few days later, the Council responded to Mrs X. The letter said council officers had investigated Mrs X’s previous complaints. It outlined the information provided by the neighbour in terms of his motorbike activities. The Council went on to say the officers were satisfied that the noise was not excessive and unreasonable. It concluded that there was no enforcement action the Council could take.
16. Mrs X was not satisfied with the Council’s response. She wrote to the Council’s chief executive about the situation. The Council responded. It said the Council can only enforce in situations where there is a legal power to do so.
17. The letter described all the key factors the Council needed to consider when investigating an allegation of a statutory noise nuisance. The letter also listed some of the common complaints the Council receives. It said it cannot deal with these complaints under the provisions of the Environmental Protection Act 1990. This included noisy vehicles/motorbikes and complaints made by people who are ill or more sensitive than the average person.
18. The letter concluded that the Council accepted that the noise caused Mrs X an annoyance. However, it said the motorbike activity was not anti-social behaviour in the spirit of the legislation.
19. The letter said the Environmental Health Service was unable to assist Mrs X any further.
20. In November 2018, Mrs X complained to the Local Government and Social Care Ombudsman (LGSCO). In line with the Local Government Act 1974, section 26(5) the LGSCO asked that Mrs X give the Council an opportunity to formally respond to her complaint first. Mrs X submitted a formal complaint to the Council. It responded with a letter which duplicated the final letter sent by the Council’s Environmental Health Service in October. The Council said that this is because its position had not changed. The Council did not refer Mrs X to the LGSCO at any point.

Analysis

21. From the evidence I have seen, Mrs X contacted the Council eight times about this issue over a two-year period. I do not consider the frequency and content of her correspondence to be unreasonable. This is because, during this time, the Council did not provide a satisfactory response. The Council said the infrequency of the complaints showed the noise was not that bad.
22. The Council said it sent generic letters to Mrs X’s neighbour. These informed him that a complaint about noise had been made and the Council was investigating. It appears then that the Council spoke to the neighbour and accepted his perception of the noise situation.
23. From the case notes I have seen, the neighbour’s account of the situation varies. During one conversation, he said he only used the bike at weekends. Another conversation he said he only used it in the summer. However, he also referred to warming the bike up in colder weather before riding it.
24. This inconsistent information should have prompted officers to undertake further investigation involving monitoring and assessment of the use and noise levels of the motorbike.
25. In its response to my enquiries, the Council said that officers visited the property. However, I have not seen any evidence that the Council monitored or assessed the noise level at any point.
26. The Council said that the accounts from Mrs X and her neighbour were consistent and this is why it did not issue diary sheets. The Council also said that by sending out diary sheets to residents, it can falsely raise their expectations. I consider that it is the Council’s role to manage these expectations. The diary sheets should be used to establish whether there is a pattern of increased noise levels. This evidence can then be used to justify the Council’s next steps.
27. Mrs X’s account of the situation and her subsequent complaint is consistent from September 2016 until the present time. In the Council’s letter dated October 2018, it said it cannot deal with complaints about noisy motorbikes under the provisions of the Environmental Protection Act 1990 (see paragraph 17 above).
28. The Council presumably had this same information back in 2016. It should have written to Mrs X and referred to this information when she first raised the issue with the Council in September 2016.
29. The Council did not adequately investigate the noise reported by Mrs X. It relied on conversations with her neighbour about the use of his motorbike. The neighbour’s account varies. The Council said it sent two letters to the neighbour but I have not seen these, only the generic template. The generic template says that the Council is preparing to investigate the noise complaint to determine what action should be taken. This may involve the use of noise recording/monitoring equipment. The Council did not act upon the advice contained in the letters.
30. It is fault that the Council does not have procedures in place for escalating noise complaints when the issues remain unresolved. It is appropriate and proportionate to send a generic letter and speak to the neighbour in the first instance. However, if the problem continues and the Council receive another complaint, it should not just repeat the same exercise again.
31. During the two-year period, records show that the Council sometimes spoke to Mrs X in response to her complaints, other times it did not respond at all. Only once, when Mrs X specifically requested, did the Council provide a written response.
32. The Council highlight that they cannot make Mrs X’s neighbour fit an anchor on his driveway. The Council discussed and recommended that he does this on two occasions, and the neighbour agreed. It would have been good practice to send a letter to the neighbour summarising the discussions and outcomes. This would be in line with the advice on the Council’s website which suggests that the Council may write informally to the neighbour offering some general advice on neighbour noise.

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Agreed action

33. Within 4 weeks of my final decision, the Council will:
1. provide a written apology to Mrs X for letting this go on for more than two years without an adequate response or action;
2. pay Mrs X £150 for avoidable time and trouble; and
3. investigate the noise in line with relevant guidance. The Council may want to consider whether monitoring using noise diary sheets, and a noise level assessment would be appropriate.
34. Within 3 months of my final decision, the Council will:
1. create a flowchart for officers to ensure they follow the Council’s noise complaints’ procedures consistently.

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Final decision

35. I uphold Mrs X’s complaint. There is fault in the way the Council dealt with Mrs X’s noise complaint, causing her an injustice.

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Investigator's decision on behalf of the Ombudsman