London Borough of Bromley (18 016 928)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 08 Aug 2019

The Ombudsman's final decision:

Summary: Mrs Y complained the Council failed to properly investigate a continuing noise nuisance from a property close to her home. She complained the Council refused to add her to its out of hours property list and disregarded recordings of the problem. The Ombudsman has found no fault in the Council’s actions.

The complaint

  1. Mrs Y complains the Council failed to properly investigate a continuing noise nuisance from a property close to her home. She complains the Council refused to add her to its out of hours property list and disregarded recordings of the problem.
  2. She says the noise is stopping her from enjoying her home and is causing her upset and inconvenience.

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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 spoke to Mrs Y and the Council to gather the different views on the complaint. I have then reviewed the evidence provided by Mrs Y and the Council about the complaint to form a view.
  2. I considered relevant legislation including the Environmental Protection Act, and information on the Council’s website about its policies.
  3. I gave the Council and Mrs Y the opportunity to comment on my draft decision and have considered the responses when making this final decision.

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What I found

Background

  1. Under the Environmental Protection Act (1990) councils have a duty to take reasonably practicable steps to investigate noises which may cause a statutory nuisance to residents within their area. For a 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
    • Injure health or be likely to injure health.
  2. Generally, the statutory nuisance will need to be witnessed by an Environmental Health officer. The process of determining what level of noise constitutes a statutory nuisance can be quite subjective. The officer will come to an independent judgement considering the type of nuisance, its duration, intensity and location to decide whether a statutory nuisance exists. Officers will usually assess the nuisance made from within a habitable room. Habitable rooms include living rooms and bedrooms.
  3. The Council has a noise out of hours service “for responding to 'emergency' noise problems” such as noisy parties and intruder alarms. The Council’s website says, “the service is not for dealing with noise complaints which are already being investigated, or which can be reported during office hours.”
  4. The Council’s website says when a resident reports a noise disturbance, the Council will send the complainant log sheets to complete to find out the extent of the problem. It says it may ask a complaint to make recordings so the Council can consider if there is a statutory nuisance and if the Council can take any action.
  5. The website explains that if a statutory nuisance does exist, the Council will serve an Abatement Notice to the person complained about requiring them to stop causing a nuisance. If the Council decides there is not a statutory nuisance, its policy is to take no further formal action. It may take informal action in some cases, to write to the person complained about to make them aware of any issue complained about.
  6. Under the Act, members of the public can ask a magistrates’ court to issue an abatement notice, requiring the defendant to stop the nuisance.

What happened

  1. In 2017 Mrs Y complained to the Council about the noise of several barking dogs coming from a property near her home.
  2. The Council had previously looked into other complaints about dogs barking from the same property from different neighbours in the area. The Council investigated the complaints but decided that recordings taken did not show a statutory nuisance.
  3. The Council provided Mrs Y with log sheets to complete to support her complaint. Mrs Y completed these over two weeks in April 2017. The Council provided Mrs Y with details of a noise recording program (an app) which she installed on her mobile phone.
  4. Mrs Y sent over 50 recordings to the Council using the app in October 2018. She had taken the recordings in her garden and kitchen. Mrs Y said she recorded noise from her kitchen and garden because she was not using her living room while renovating her property. She considered her kitchen to be her habitable living space.
  5. The Council made a home visit to Mrs Y in October 2018. The council’s officer was not able to hear the barking during his visit. The officer’s professional opinion was that although he had not heard the noise himself, from listening to the recordings, the noise was too short and infrequent to be a statutory nuisance. The officer explained to Mrs Y that as she could still use the living room it remained the habitable area. Consequently, he said that any further recordings from the kitchen or garden would not be suitable to use to prove a statutory nuisance if there was one because they were not the main habitable area of the property.
  6. The Council explained to Mrs Y that it would take no further action in an email in November 2018. Mrs Y complained to the Council in December 2018.
  7. The Council responded in February 2019, explaining that following its investigation, it had not found strong enough evidence to demonstrate a statutory nuisance. Consequently, any formal action would likely not be successful.
  8. It told Mrs Y about her right to take the matter to the magistrates’ court but confirmed the Council had completed its investigation into the noise and had now closed its case. It said Mrs Y would need to provide either new points or further reasons for the Council to consider any further action. The Council’s response also said there was insufficient evidence of a statutory nuisance to warrant the Council adding Mrs Y to its out of hours referral list.

Analysis

  1. When Mrs Y reported the noise problem to the Council it provided her with two ways to record the issue, logs and an app. The Council visited Mrs Y’s property for the officer to discuss the noise with her and try to experience the problem themselves. However, the officer could not experience the problem during the visit. They decided the noise from the recordings was not sufficient evidence of a statutory nuisance. It also considered that as the recordings were not from a habitable room, the evidence would not have been suitable to use if a statutory nuisance had been found. The officer explained this to Mrs Y in writing. The Council then closed its file into Mrs Y’s complaint as its investigation had not found a statutory nuisance.
  2. The Council collected and did consider the evidence, including the evidence from the previous investigation. The evidence Mrs Y provided was not in the officer’s opinion evidence of a statutory nuisance. While Mrs Y disagrees with this, the Council used its judgement to decide this. There was not fault in the Council’s consideration of Mrs Y’s complaint and its investigation into it.
  3. Without a statutory nuisance the Council could not take further formal action. As the Council followed its process to investigate the problem Mrs Y had reported, there was not fault in its actions.
  4. As it had not found a statutory nuisance the Council did not add Mrs Y to its out of hours referral list. The Council’s out of hours service is for emergency issues, such as house alarms, and not for noise problems which the Council can investigate during working hours. Mrs Y’s noise complaint was not an emergency and the Council had been able to investigate the problem during working hours. Therefore, there was no fault in the Council’s refusal to add Mrs Y to its out of hours list.
  5. In responding to Mrs Y’s complaint, the Council referred to Mrs Y’s recordings not meeting the evidential standard for successful prosecution. It might have been clearer to have repeated that there was no evidence of a statutory nuisance. However, this was not fault.
  6. The Council has confirmed it will still consider evidence from Mrs Y to decide if this shows a significant change to the recordings and visit made earlier. If the evidence she provides does show this, it can consider whether to take further action.

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Final decision

  1. I have completed my investigation and do not uphold Mrs Y’s complaint.

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Investigator's decision on behalf of the Ombudsman

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