Plymouth City Council (19 010 928)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 22 Sep 2020

The Ombudsman's final decision:

Summary: Mr X complained on behalf of his relative, Mr Y, about noise nuisance from a business premises near Mr Y’s home. The Council was at fault. There was delay and errors in how the Council managed Mr Y’s case, which caused Mr Y frustration and distress. The Council has apologised to Mr Y, but this is insufficient to remedy the injustice caused. The Council will pay Mr Y £200 to acknowledge its errors and distress caused and review its procedures.

The complaint

  1. Mr X complained on behalf of his relative, Mr Y, about noise nuisance from a business premises near Mr Y’s home. He said Mr Y had been complaining to the Council since 2014, but there had been administrative mistakes, unacceptable delays and an overall lack of action to address the problem. He said the noise nuisance was ongoing and unreasonably interfered with Mr Y’s enjoyment of his home, causing him distress, financial loss and devaluation of his property. He wants the Council to take appropriate enforcement action to end the noise nuisance and to compensate Mr Y for the financial loss and distress caused.

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The Ombudsman’s role and powers

  1. 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). Although Mr X and Mr Y are dissatisfied with the Council’s actions prior to September 2018, I can see no good reason why they could not have complained to the Council at the time. I have therefore limited this investigation to events from September 2018 onwards.
  2. 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)
  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

  1. I read Mr X’s complaint and spoke with him about it on the phone.
  2. We made enquiries of the Council and I considered information sent in response. I also considered information submitted by Mr X.
  3. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Legal and administrative background

Community protection notices

  1. Councils and the Police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a detrimental effect on the community’s quality of life and is considered unreasonable. CPNs require the behaviour listed in the notice to stop, and failure to comply is an offence which may result in a fine or fixed penalty notice.
  2. Should a fixed penalty go unpaid, the normal course of action would be to prosecute the recipient in the magistrate’s court. Legal proceedings must begin within 6 months of the offence being committed.

Statutory nuisance and abatement notices

  1. Under the Environmental Protection Act 1990 (EPA), councils can also issue an abatement notice should it consider there to be sufficient evidence of a “statutory nuisance”.
  2. Typical things which may be a statutory nuisance include:
    • noise from premises or vehicles, equipment or machinery in the street
    • smoke from premises
    • smells from industry, trade or business premises
    • artificial light from premises.
  3. For the issue to count as a statutory nuisance, the council must decide it:
    • unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and / or
    • injures health or is likely to injure health.
  4. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
  5. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
  6. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.

The Council’s approach to complaints of noise nuisance

  1. The Council says it will take steps to enforce legislation, but this does not mean it will take enforcement action in respect of each and every infringement. It says it will implement enforcement action in line with its enforcement priorities and available resources.

What happened

Background information

  1. Mr Y had been complaining to the Council about noise nuisance from both inside and outside a nearby business premises since 2014. In 2015, the Council issued the owner with a Community Protection Notice (CPN). This notice covered noise nuisance originating from group activity within the premises and from speech in the vicinity. The Council considered the owner breached the notice in 2016 and 2017. It issued two fixed penalty notices, but the owner did not pay them. The Council considered whether to prosecute the owner for non-payment, but due to the wording of the CPN specifying noise from group activity, it decided there was insufficient evidence to prove a breach. It did not prosecute the owner on either occasion.
  2. In July 2018, the Council issued the business owner with an abatement notice.

My investigation

  1. In September 2018, Mr Y told the Council the noise nuisance was ongoing, and he considered the owner to be in breach of the abatement notice. The Council considered evidence provided by Mr Y, but did not consider it sufficient to amount to a breach. The EHO responsible for the case (officer A) wrote to Mr Y to tell him of the decision.
  2. Mr Y and officer A corresponded during September and October. Officer A told Mr Y the evidence would be stronger if Mr Y could gather evidence of noise nuisance from specific areas of his property. e.g. the lounge. Officer A told Mr Y he would check and confirm what enforcement notices against the business owner were currently in place.
  3. In February 2019, Mr Y wrote to officer A again asking them to clarify where best to record the noise nuisance.
  4. By March, officer A had not responded, so Mr Y contacted the Council again asking it to clarify where best to collect video evidence to prove a breach of the CPN.
  5. In April, officer A told Mr Y the case had been closed over the winter. They said they were awaiting further advice from their manager and would get back to him in due course. Mr Y told officer A he had bought new recording equipment to better record the noise nuisance. Officer A then advised Mr Y where to record and Mr Y started making recordings and sharing the videos with officer A.
  6. Between May and July, officer A was absent from work. The Council did not tell Mr Y this or reallocate the case to a different officer. Mr Y continued to send in videos to officer A and tried to contact them to discuss the evidence submitted. The Council did not respond to Mr Y’s emails.
  7. In July, officer A briefly returned to work, but did not contact Mr Y. Officer A was then absent again for several months. Mr Y contacted the Council. He said he had been trying to contact officer A since April, but they had not responded. He asked the Council to respond and said if it did not do so, he would instruct a solicitor. He contacted his local councillor, who also complained on Mr Y’s behalf about the lack of response.
  8. The Council reallocated the case to officer B, who wrote to Mr Y. They asked him to keep diary sheets. They also told him it would be unlikely that any of his own video recordings could be used in a prosecution. They said the Council may want to install its own recording equipment in his home.
  9. Mr Y submitted a formal complaint. He complained about the Council’s delay and lack of action. He said officer A had advised him to make home recordings, but officer B was now telling him these were not sufficient evidence to progress his case.
  10. In August, the Council responded to his complaint. It said Mr Y had submitted no new evidence since August 2017. It said it could not progress the case until new evidence was gathered.
  11. Mr Y responded to say he had been submitting video evidence to officer A since April 2019. The Council reviewed the case and realised no one had accessed officer A’s mailbox since May. It accessed the mailbox and found Mr Y’s video evidence. It apologised to Mr Y and said it would further investigate, now this new evidence had come to light.
  12. In September 2019, it installed noise monitoring equipment in Mr Y’s property.
  13. It provided a further, final response to Mr Y’s complaint. It apologised for the delays caused by officer A’s absence and the Council’s failure to check his mailbox for correspondence. It accepted that, overall, the standard of service provided was below that expected and apologised to Mr Y for this. It said due to the passage of time, the best way to resolve the case was to gather new evidence.
  14. Mr Y was unhappy with this response. He told the Council he was concerned it had not viewed the video evidence he submitted. He said officer A had encouraged him to record video footage and he had purchased new equipment to do this, but the Council had now told him this was not suitable to use as evidence.
  15. In October, Mr X took over corresponding with the Council on Mr Y’s behalf. The Council reviewed the evidence from its noise monitoring equipment and discussed the case with Mr X. It agreed there was sufficient evidence of noise disturbance causing anti-social behaviour and issued the business owner with a CPN.
  16. The Council contacted Mr X a week later, who confirmed the noise levels at Mr Y’s property had reduced.
  17. Later that month, Mr X told the Council he was concerned noise levels were rising again. The Council re-installed its noise monitoring equipment in Mr Y’s property but found no evidence of excessive noise or anti-social behaviour.
  18. The Council emailed Mr X in November and December, and Mr X told the Council the noise disturbance had mostly ceased.
  19. In January 2020, Mr X told the Council the noise at Mr Y’s property had increased again. The Council offered to install the noise monitoring equipment again, but Mr X declined. The Council sent a letter to the business owner warning them it was still receiving complaints about noise and that they were legally obliged to adhere to the CPN.
  20. In April 2020, the business owner moved out of the premises and the Council closed the case.

Analysis

  1. When Mr Y complained in September 2018, the Council reviewed the evidence appropriately. It did not consider there was sufficient evidence the business owner was in breach of the abatement notice. The Council acted as we would expect by reviewing the evidence, coming to a decision, and informing Mr Y of the outcome. This decision is not fault.
  2. There was some delay in responding to Mr Y’s email in February 2019. However, there is no evidence this delay caused Mr Y a significant injustice.
  3. The Council did not inform Mr Y that officer A was absent from work between May and July 2019 or reallocate Mr Y’s case. During this time, Mr Y was sending officer A emails and video footage for consideration, but no-one was reviewing this footage or communicating with Mr Y. This lack of communication is fault, which caused Mr Y significant frustration and distress and led to delays in the investigation.
  4. When Mr Y complained in July 2019, the Council did not access officer A’s mailbox as part of the complaint investigation. This led to a flawed investigation and an inaccurate complaint response. This is fault which caused further delay and Mr Y further frustration and distress.
  5. The Council has apologised for the delays and poor communication in its complaint response, but this is insufficient to remedy the frustration and distress caused to Mr Y.
  6. I have seen no evidence the Council’s actions directly caused Mr Y financial loss or devaluation of his property. Mr Y purchased new recording equipment in 2019, but this decision was Mr Y’s choice.
  7. Following Mr Y’s complaint, the Council acted appropriately to firstly provide noise recording equipment and then review all the evidence. It decided there was evidence of anti-social behaviour and issued the business owner with a new community protection notice. It then communicated appropriately with Mr X to ensure the notice was being adhered to and the noise nuisance had subsided. From September 2019 onwards, there was no fault in the Council’s actions.

Agreed action

  1. Within one month of the final decision, the Council will pay Mr Y £200 to acknowledge the distress and frustration caused by the poor service and delays.
  2. Within three months of the final decision, the Council will review its procedures to ensure it has an effective system to review active cases and monitor staff mailboxes when a staff member is absent from work for an extended period.

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Final decision

  1. I have completed my investigation. I have found fault and the Council has agreed actions to remedy the injustice caused and improve procedures.

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Parts of the complaint that I did not investigate

  1. I have not investigated events prior to September 2018, for the reasons set out in paragraph 1.

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Investigator's decision on behalf of the Ombudsman

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