Manchester City Council (19 000 157)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 12 Aug 2019

The Ombudsman's final decision:

Summary: Mrs X complains about the way the Council has dealt with a noise nuisance being perpetrated by her next-door neighbour, stating it has failed to follow the relevant anti-social behaviour legislation. She says the noise often occurs during unsociable hours and is impacting on her physical and mental health. To remedy the situation, she wants it to take formal action to get the noise to stop. The Ombudsman has found the Council was not at fault because it properly investigated Mrs X’s concerns before deciding not to take formal enforcement action.

The complaint

  1. The complainant, who I shall refer to as Mrs X, complains about the way the Council has dealt with a noise nuisance being perpetrated by her next-door neighbour, stating it has failed to follow the relevant anti-social behaviour legislation. She says the noise often occurs during unsociable hours and is impacting on her physical and mental health. To remedy the situation, she wants it to take formal action to get the noise to stop.

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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 Mrs X’s complaint and the documents she submitted in support of it.
    • Considered the Council’s comments about the complaint and the supporting documents it provided.
    • Provided both parties with an opportunity to comment on the draft decision.

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What I found

  1. Section 17 of the Crime and Disorder Act 1998 places a duty on councils to tackle anti-social behaviour. They can discharge this duty in a variety of ways and may use powers available to them under the Environmental Protection Act 1990 or the Anti-Social Behaviour, Crime and Policing Act 2014.
  2. The Environmental Protection Act 1990 allows councils to take formal enforcement action if a ‘statutory nuisance’ is taking place. For a noise to count as a statutory nuisance it must unreasonably and substantially interfere with the use or enjoyment of a home or other premises, or injure health or be likely to injure health. The noise must be witnessed by an environmental health officer and he or she will come to an independent judgement about whether it constitutes a statutory nuisance. The legislation also permits members of the public to apply to a magistrate’s court for an abatement notice if they think a statutory nuisance is taking place.
  3. Manchester City Council’s policy on this matter states it will initially take informal action to try and resolve complaints about noise being made by a neighbour. If this does not work, it says it will take formal action if one of its officers witnesses a statutory noise nuisance taking place.
  4. The Anti-Social Behaviour, Crime and Policing Act 2014 allows councils to take action, be it formal or informal, if anti-social behaviour is taking place. Manchester City Council’s policy on this matter states it will not investigate reports of anti-social behaviour if the actions complained about “are considered to be normal everyday activities or household noise”. Similarly, if it does investigate it states it will close a case and not take action if there is insufficient evidence or the actions complained about are not anti-social.

What happened

  1. Mrs X lives alone and owns her own house. In March 2016, her current neighbours moved in next door. Shortly after, Mrs X started complaining to the Council about noise being made by these neighbours. This included noise from a washing machine that was located close to the wall which separates both properties. The Council started to investigate the matter and took informal action to try and resolve it.
  2. In October 2016, the Council noted that Mrs X had spoken to her neighbours and resolved the matter. Mrs X states this is not true and the matter was not resolved.
  3. In September 2017, Mrs X submitted a new complaint to the Council about the washing machine issue.
  4. In November 2017, a Council officer visited Mrs X’s home after she reported a noise nuisance. The officer noted the report was made earlier in the day and no noise could be heard at the time of the visit. Prior to the visit, Mrs X had been advised to report nuisances to the Council as they happened so an officer could visit and witness them.
  5. Mrs X continued to raise complaints about the noise throughout 2017 and 2018. The Council reiterated she needed to report incidents as they happened. On some occasions, she stated she had called in a timely manner but no officer was available to visit. During this period, the Council carried out an anti-social behaviour investigation but closed this due to insufficient evidence.
  6. In November 2018, two Council officers visited Mrs X’s property and one of their colleagues visited her neighbour. The officer in the neighbouring property operated the shower and washing machine whilst the two officers in Mrs X’s home listened. They found the appliances made “living noise” but nothing which would be classified as a statutory nuisance. Consequently, they informed Mrs X the Council was unable to take any action in response to her concerns.
  7. In mid-December 2018, the Council wrote to Mrs X after she started complaining about the issue again. It noted she had complained about noise emanating from the property at various points over the past eight years. However, it said its officers had never witnessed a statutory noise nuisance occurring during any of its investigations, nor had the sound recording equipment it had installed previously done so either. It mentioned its recent visit and said officers would no longer visit her home to investigate. Nevertheless, it informed her she could take her own action by applying to a magistrate’s court for an abatement notice under Section 82 of the Environmental Protection Act 1990.
  8. At the beginning of January 2019, Mrs X wrote to the Head of the Council to complain about the way it had dealt with her concerns. She said the positioning and operation of her neighbour’s washing machine constituted anti-social behaviour, but complained the Council had no policy in place to address this. She outlined the history to her case and described the impact the noise was having on her. In conclusion, she asked for help to get the matter resolved.
  9. At the beginning of February 2019, the Council responded to the complaint. It said it did not consider the positioning of an appliance such as a washing machine as anti-social behaviour and said there was no legislation which stipulates where these appliances should be placed. It referred to the visit undertaken in November 2018 and said it had not found evidence of a statutory nuisance, nor had it obtained any evidence which indicated any noise coming from her neighbour’s property constituted anti-social behaviour. It outlined the support it had offered her through mediation and a recent referral it had made to adult services. In summary, it found no evidence of fault and said its investigations had uncovered no evidence of anti-social behaviour or a statutory noise nuisance.
  10. Approximately a week later, the Mrs X wrote to the Council to escalate her complaint. She said its response had been dismissive and unsympathetic to her situation. In her letter, she said:

"I have asked the Council to take action on my behalf with the Courts in an attempt to have the law changed or at least a decision made that such actions be considered Anti-Social."

  1. In the middle of the month, the Council responded to Mrs X’s escalated complaint. It sympathised with her situation but reasserted the points it had made in its first response, adding it had “no legally valid way” to pursue the matter on her behalf.
  2. Mrs X then complained to the Ombudsman about the matter.

Analysis

  1. The council has investigated whether the noise being made by Mrs X’s neighbour constitutes anti-social behaviour or a statutory nuisance. In both cases, it has concluded it does not have sufficient evidence to take formal action in the courts, which is the main outcome that Mrs X desires. The information I have seen indicates it properly investigated her concerns and visited her property before reaching its decision. I would not expect it to take legal action if there was insufficient evidence to do so. Similarly, I would not expect it to seek a change of legislation as this is not its primary responsibility.
  2. Despite the findings of the Council’s investigations, it is clear the circumstances surrounding this complaint are causing Mrs X considerable distress. I understand the noise she is experiencing may be causing this, however legally the Council is not required to take someone’s personal circumstances and conditions into account when deciding whether a statutory nuisance is taking place. I appreciate she may be more sensitive than others to the noise being created, but this does not mean the Council should pursue legal action to address the matter. As I have already noted, it did not have sufficient evidence to do this. Instead, it has tried to support Mrs X by offering mediation services and the assistance of its social care team. It could not have done anything else.
  3. Considering all these points, I have found the Council was not at fault. This is because it properly investigated Mrs X’s concerns before deciding not to take formal enforcement action.

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Final decision

  1. The Council was not at fault because it properly investigated Mrs X’s concerns before deciding not to take formal enforcement action.

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Investigator's decision on behalf of the Ombudsman

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