The Ombudsman's final decision:
Summary: Mr Y complains the Council has failed to resolve noise nuisance issues caused by his neighbour in a timely manner. He says this has caused him distress and frustration. The Ombudsman has upheld Mr Y’s complaint because there is fault by the Council causing injustice. To remedy the injustice, the Council has agreed to apologise to Mr Y and make him a payment.
- The complainant, who I shall refer to here as Mr Y, complains the Council has failed to:
- resolve the noise nuisance caused by his neighbour in a timely manner. He says the issues have been ongoing since 2018;
- take legal action against his neighbour after his neighbour contravened a noise abatement order;
- answer his phone calls;
- provide him with a copy of the noise abatement notice served on his neighbour; and,
- respond to his concerns about the quality of service he has received.
What I have investigated
- I have investigated the part of Mr Y’s complaint about the Council’s investigation of his noise nuisance issues from January 2019 onwards. The last section of this decision statement explains my reasons for not investigating further back than that.
The Ombudsman’s role and powers
- 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)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
- 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)
- 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)
How I considered this complaint
- I considered the information and documents provided by Mr Y and the Council. I spoke to Mr Y about his complaint.
- Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
What should have happened
Statutory noise nuisances
- Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990).
- The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
- 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 other premises
- injure health or be likely to injure health
- Generally, the statutory nuisance will need to be witnessed by the council’s Environmental Health Officer and he/she will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has actually occurred.
- If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or limit the activity to certain times of day. It can include specific actions to reduce the problem. If someone does not comply with an abatement notice they can be prosecuted and fined.
- Members of the public may bring their own case to the Magistrates Court to ask the Court to serve an abatement notice (section 82, Environmental Protection Act 1990).
City of Bradford Metropolitan District Council’s guidance on domestic noise and barking dog enquiries
- The Council’s guidance on domestic guidance on domestic noise and barking dog enquiries (published April 2019) states:
- the Council’s Department of Health and Wellbeing can normally only take action in such circumstances where noise causes a problem during unreasonable hours, not during the normal working day; and
- this guidance applies to reports of noise from DIY activities at unreasonable times that may amount to a statutory noise nuisance.
- From January 2019, Mr Y raised multiple reports about DIY noise in his neighbour’s property.
- At the beginning of October, the Council put noise monitoring equipment in place.
- Later in October, the Council collected the noise monitoring equipment and decided noise made by Mr Y’s neighbour on a Sunday constituted a statutory noise nuisance. The Council served a noise abatement notice on Mr Y’s neighbour. It told Mr Y this had been served.
- The Council’s noise abatement notice prohibited Mr Y’s neighbour from carrying out loud DIY work outside the following times:
- between 8am and 6pm from Monday to Friday;
- between 8 am and 12pm on Saturday; and,
- no such work was allowed on Sunday and during Bank Holidays.
- In November, Mr Y tried to contact the EHO a number of times on a day he was out of the office.
- Two days later, Mr Y spoke with the EHO to say DIY noise was occurring. The EHO explained to Mr Y that he had called to report the noise at a time of day that the DIY work was permitted. The EHO said he would visit Mr Y’s property if the noise continued after 6pm and explained an officer must hear the noise in person to decide if a violation of the noise abatement notice has taken place.
- In December, the Council sent Mr Y its stage one complaint response. It said:
- it did not uphold Mr Y’s complaint about the Council failing to send a copy of the noise abatement notice;
- it partially upheld Mr Y’s complaint about the length of time the EHO had taken to deal with his complaint. Specifically, it accepted there was a delay of seven months between March and September 2019 while the EHO reviewed relevant legislation and contacted other council EHOs for their views on the action to take;
- its investigation was ongoing and its environmental health service had not closed his case;
- it did not uphold Mr Y’s complaint about the quality of service received. It said, during a call, the EHO manager had explained the legislative requirements and practical issues involved in installing noise recording equipment and witnessing breaches of abatement notices. However, it found that the EHO’s manager justifiably warned Mr Y that he would need to contact the police if Mr Y continued using unacceptable language and making threats towards his neighbour; and,
- it provided Mr Y with details of the noise abatement notice served, the legal basis for this and explained when DIY work may be considered a noise nuisance. It asked Mr Y to refrain from using threats of violence towards his neighbour or taking retaliatory action as this would likely damage any potential legal proceedings taken by the Council.
- Mr Y replied to say his neighbour was not complying with the noise abatement notice. He said the situation was affecting his health.
- A week later, the Council officer who investigated its stage one response replied to Mr Y. He said:
- it was usual practice for the Council to request logs of noise issues from those reporting such issues. He said he would forward such noise logs to Mr Y if he was prepared to use them to support the Council’s investigation of Mr Y’s case; and
- the Council’s investigation of Mr Y’s case was ongoing. If the Council witnessed the neighbour breaching the terms of the abatement notice, it would consider taking legal action against him. However, the officer told Mr Y that, if he decided to retaliate against his neighbour with noise, then this could harm the Council’s case if legal action was taken against his neighbour.
- Mr Y replied to the Council to complain:
- the EHO handling his case had repeatedly failed to answer his calls to his mobile phone over the last two years;
- the EHO had never asked him to send him diary sheets of the noise; and,
- he did not agree that any retaliatory noise he made against his neighbour would harm the Council’s case.
- In January 2020, the same Council officer replied to Mr Y. He said:
- he took it to mean that Mr Y was not prepared to complete noise logs;
- it was “quite clear that you do not wish to follow my advice in respect of retaliatory actions against your neighbour or to refrain from the use of inflammatory language about him” so as to not harm any potential legal proceedings; and,
- given Mr Y continued to be unhappy with the Council’s investigation of noise from his neighbour, he may wish to take legal action against his neighbour himself. The officer asked Mr Y to contact him if he would like further advice and relevant documentation on this.
- Mr Y replied to the Council officer. He said that he did not have the financial means to take legal action himself.
- Mr Y complained to the Ombudsman.
- In February, the Council’s EHO tried to contact Mr Y. He left a voicemail message when he could not reach Mr Y.
- In March, the EHO wrote to Mr Y to tell him the Council’s investigation continued. The EHO asked Mr Y to contact him if he heard DIY noise outside the allowed hours (see paragraph 21 above). He emailed Mr Y details of the Council’s new application for reporting noise issues.
- In May, Mr Y emailed the EHO to say his neighbour carried out DIY work during the Easter Bank Holiday and outside the allowed hours.
- The EHO replied to Mr Y asking him to contact him at the time the noise was happening so he can be present to witness it.
- In June, the Council sent Mr Y its final complaint response.
Analysis – was there fault by the Council causing injustice
Action taken by the Council because of reports of noise nuisance
- Mr Y complains the Council has failed to resolve the noise nuisance caused by his neighbour in a timely manner (part a of his complaint). He also complains the Council failed to take legal action against his neighbour after his neighbour contravened a noise abatement order (part b of his complaint).
- I have considered the Council’s stage one and stage two complaint responses alongside correspondence between the Council and Mr Y. I find the following:
- at the end of January 2019, the Council’s environmental health officer (EHO) visited Mr Y’s property and heard DIY noise. The EHO tried to engage in mediation between Mr Y and his neighbour to agree on a level of DIY work that was acceptable to both parties. However, it became clear this was not achievable. Councils can decide to take informal action, such as mediation, if the noise complained about is causing a nuisance, but is not at the level of a statutory nuisance. It is not clear whether the EHO undertook this mediation because he did not consider the noise to be a statutory noise nuisance and explained this to Mr Y. This is fault, which caused Mr Y uncertainty;
- the Council accepts that, following the EHO’s visit, there was a delay of seven months in the Council dealing with Mr Y’s complaint (between March and September 2019). In its final complaint response, the Council said, given the EHO knew the neighbour’s DIY works would take a long time and given the impact of the noise on Mr Y’s health, the Council should have contacted Mr Y between March and September 2019. Based on the evidence I have seen, the Council decided to take further action after Mr Y chased the Council again in September. This is fault, which caused Mr Y distress and uncertainty. This is because there was a significant period of time when he did not know what action, if any, the Council could take;
- in September 2019, Mr Y contacted the Council again to report loud DIY noise. Following the installation of sound monitoring equipment in October, the Council detected a statutory noise nuisance and served a noise abatement notice. It provided Mr Y with details of this. Internal emails from the EHO with a Councillor at this time show the EHO decided to use the Control of Pollution Act 1974 as a guide as to whether the nuisance was being caused and to set the relevant times DIY work was permitted (see paragraph 21 above). He said “These times relate to building sites, but they have been used as the basis of a nuisance criteria for DIY work, subject to various caveats revolving around the loudness of the noise, its duration and its frequency of occurrence. For example, we would not consider a short, one-off spell of noisy DIY work carried out on a Sunday to be a statutory nuisance.” This confirms how the Council decided the hours of day it considered carrying out loud DIY work to be unreasonable (in line with paragraph 17 above). I do not find the Council at fault here. In line with paragraph six above, I understand Mr Y does not agree with the times set, but without fault in the way the Council made its decision, I cannot question the content;
- following the serving of the noise abatement notice in October, Mr Y contacted the Council twice in November to report DIY noise. The EHO told Mr Y that on one occasion the noise occurred at a permissible time and that Mr Y should contact him outside the permissible times when the noise was occurring so he could witness the noise. However, the EHO said he cannot be on call all hours of the day to receive such contact from Mr Y. In its stage one response, the Council said it does not provide a 24 hour service to respond to reports of noise nuisance either. The information Mr Y received about who to contact and how to contact the Council outside of normal office hours was conflicting and confusing. When the Council subsequently requested Mr Y record any DIY noise through a mobile telephone application and Mr Y declined this, it failed to provide Mr Y with details of the alternative ways he could report noise. This is fault. This caused Mr Y uncertainty and frustration, particularly given the restrictions on carrying out DIY works largely applied to weekends and times out of office hours; and,
- the Council has explained that it has not taken legal action against Mr Y’s neighbour as it has not witnessed a breach of the noise abatement notice. It has explained there were significant periods of time when Mr Y did not report any noise issues. It has asked Mr Y to continue to report any DIY noise so it can make efforts to witness this. I do not find the Council at fault here as this is a decision the Council was entitled to make.
The Council’s handling of phone calls
- Mr Y complains the Council has failed to answer his phone calls (part c of his complaint).
- It is acceptable for the Council’s EHO not to answer calls when, for example, he is engaged with other business or on leave. I do not find the Council at fault here.
- However, in such circumstances, Mr Y should have been provided with other ways to report the noise nuisance. Paragraph 37, bullet point d, above explains my reasons for finding the Council at fault in terms of how it explained the ways Mr Y could report noise issues. In a briefing paper to the Council’s stage one investigator, the EHO confirmed it had provided Mr Y with his private mobile number to report noise issues. This is because he said he wished to witness any potential breaches of the noise abatement notice in person. Although this does not amount to fault by itself, this is likely to have led to raised expectations for Mr Y when contacting the EHO and contributed to the fault identified in paragraph 37, bullet point d, above.
Information provided to the complainant about the noise abatement notice
- Mr Y complains the Council has failed to provide him with a copy of the noise abatement notice served on his neighbour (part d of his complaint).
- In the Council’s stage one complaint response, it confirmed the date the noise abatement notice was served on Mr Y’s neighbour and provided details of the periods during which his neighbour could reasonably carry out DIY works. It said its records showed a Council officer had previously given this information to Mr Y.
- However, it explained noise abatement notices are only sent to the alleged perpetrator. It said this was to make sure it acted in accordance with relevant data protection legislation.
- I find the Council fully responded to Mr Y’s complaint. It provided Mr Y with the relevant information on the action it had taken and would take if DIY works were carried out outside of the permitted time periods. It clearly explained why the noise abatement notice could not be sent to Mr Y. I do not find the Council at fault here.
The Council’s handling of the complaint’s quality of service concerns
- Mr Y complains the Council has failed to respond to his concerns about the quality of service he has received (part e of his complaint).
- The Council’s final complaint response explained that it is normal practice for officers to contact the police when a threat is made by a member of the public towards a third party. It explained to Mr Y that this was why it was acceptable for the EHO’s manager to highlight this to Mr Y following comments he had made about his neighbour. I do not find the Council at fault here.
- The Council also explained to Mr Y that its policy on dealing with abusive, persistent or vexatious complainants states abusive language during phone calls should not be tolerated and officers should terminate the call if this behaviour continues after a warning is given. I find the Council’s environmental health manager followed this policy when warning Mr Y about the language being used. This was so the conversation could continue without the manager having to terminate the call. Council officers are not expected to accept language that is offensive. I do not find the Council at fault here.
- Within four weeks of my decision, the Council has agreed to:
- apologise to Mr Y in writing for the delay in progressing his reports of noise nuisance and failing to consistently provide details of who Mr Y should contact out of usual office hours to report noise issues. This apology should include clear details of the ways Mr Y can report any potential breaches of the noise abatement notice; and
- make a payment to Mr Y of £150 for the uncertainty and distress Mr Y experienced. When recommending this payment, I have taken into consideration the seven month period of delay (covering the period of March to September 2019) and the Council’s failure to provide Mr Y with details of a point of contact when Mr Y wished to report noise issues outside office hours. This is in line with the Ombudsman’s published guidance on remedies.
- I have completed my investigation. I have decided to uphold Mr Y’s complaint because there is fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy the injustice.
Parts of the complaint that I did not investigate
- Mr Y says he has been reporting noise nuisance issues with his neighbour since 2018.
- In line with paragraph seven above, 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. Mr Y has explained why he did not complain to the Ombudsman sooner than January 2020 and I have considered his reasons.
- In Mr Y’s case, I think that he could have complained sooner. I, therefore, do not consider there are good reasons to investigate further back than January 2019.
Investigator's decision on behalf of the Ombudsman