Summary: Mr X complained the Council failed to follow up on his reports of noise nuisance since August 2019. Mr X also complained the Council failed to keep him updated about his noise nuisance reports and complaint. The Ombudsman finds fault with the actions of the Council. The Council has agreed to update its policy, provide training to staff and issues a bulletin about the interim measures it is taking during the Covid-19 pandemic. The Council also agreed to provide Mr X with an apology and payment of £300 to reflect the frustration, distress and delays experienced.

The complaint

1. Mr X complained the Council failed to follow up on his reports of noise nuisance since August 2019.
2. Mr X also complained the Council failed to keep him updated about his noise nuisance reports and complaint.
3. Mr X says the lack of action from the Council caused the noise nuisance to affect his health through panic attacks, stress and anxiety. Mr X says this caused him to miss work and affected his personal family life.

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The Ombudsman’s role and powers

4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

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How I considered this complaint

6. I have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. The Council provided comment on my draft decision. I have considered the Council’s comments before making my final decision.

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What I found

Statutory Noise Nuisance

8. The Environmental Protection Act 1990 (EPA) places a duty on councils to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other property
• Injure health or be likely to injure health
9. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
10. The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must take action to stop it. The Council must issue an abatement notice if it is satisfied that a statutory nuisance exists.
11. If a person contravenes an abatement notice they will be guilty of an offence. A person committing an offence is liable to a fine on conviction by a Court.

Council Policy

12. The Council’s policy for handling noise nuisance outlines the action it will take when a complaint is raised about noise nuisance. It says:
• On first contact the Council will log a complaint and send an initial letter to the complainant including a noise log sheet and information leaflet. The Council may write a letter to the alleged perpetrator at this time if the investigating officer considers it appropriate.
• If a complainant completes a noise log-sheet showing a pattern of disturbance, or the noise nuisance can be quickly verified by an investigating officer, the Council will write to the alleged perpetrator asking them to stop the disturbance.
• Should the letter not stop the noise nuisance, the Council requires the complainant to keep log sheets and to contact it at the time of future noise nuisance so it can visit to witness the noise nuisance. Should visits be unsuccessful the Council should offer the installation of noise monitoring equipment to record any noise nuisance.
• If the Council witnesses a statutory noise nuisance following the warning letter, the Council should serve an abatement notice.
• If the Council witnesses a breach of the abatement notice it should prosecute the perpetrator in the Magistrates Court.
13. The Council can close a complaint should no noise log-sheets be returned within 4 weeks of the initial complaint.
     

What Happened

14. Mr X complained to the Council about noise nuisance on 11 August 2019. The Council sent Mr X noise nuisance log-sheets and a copy of its policy on noise nuisance complaints. Mr X returned the noise nuisance log-sheets to the Council on 21 August 2019.
15. The Council sent a letter to the perpetrator of the noise on 22 August 2019 advising him about the noise nuisance complaint.
16. The Council closed Mr X’s complaint in September 2019 following no further contact.
17. Mr X complained to the Council again in November 2019 about noise nuisance from the same property. Mr X sent an updated noise nuisance log to the Council on 2 December 2019.
18. Mr X contacted the Council on 9 December 2019 and 5 January 2020 to report noise nuisance before sending an updated noise nuisance log to the Council on 6 January 2020. The Council took no action on the back of these contacts.
19. Mr X reported a further noise nuisance on 29 February 2020. The Council attended and heard music outside the property. The Council officer reported that the music stopped when he knocked on the door, but the perpetrator did not answer the door.
20. Mr X complained about the noise nuisance and lack of action from the Council on 2 March 2020 and 8 March 2020. Mr X reported a further noise nuisance on 15 March 2020. A council officer attended on 15 March 2020 and witnessed a statutory noise nuisance.
21. The Councill issued an abatement notice to the perpetrator on 23 March 2020 requiring the noise to stop.
22. The Council provided its stage 1 response to Mr X’s complaint on 7 April 2020. It said:
• It had issued an abatement notice after witnessing a statutory noise nuisance.
• It would continue to monitor the property for recurrences.
• It had delayed in handling Mr X’s reports of noise nuisance.
• It could not act further until it had witnessed a noise nuisance in breach of the abatement notice.
23. Mr X reported a further noise nuisance on 24 April 2020, but the Council did not make a visit. Mr X complained that noise nuisance was ongoing and the perpetrator was ignoring the abatement notice. Mr X requested escalation to Stage 2 of the complaints process.
24. The Council told Mr X it needed to witness a breach of the abatement notice at least twice before prosecuting the perpetrator. It made an unannounced visit on 5 May 2020 but noted no noise.
25. On 1 June 2020, the Council provided its Stage 2 response. It said:
• Council Officers had attended the property on various occasions since the abatement notice but not reported any noise nuisance.
• It considered the issue was resolved through the abatement notice.
26. Mr X reported further noise nuisance on 8 June 2020 and 18 June 2020. The Council attended on both occasions but did not witness a noise nuisance. Mr X also complained about aggressive behaviour from the perpetrator on 10 June 2020.
27. On 11 August 2020, Mr X reported a noise nuisance. A Council Officer attended and witnessed a noise nuisance in breach of the abatement notice. The Council officer confirmed they could hear the noise nuisance 20 metres away from the address and was even louder inside the block of flats. The Council officer noted the music “definitely in my opinion causing a nuisance”. The Council officer confirmed “This is the first breach of notice served”.
28. The Council confirmed to Mr X it would need to witness one further breach of the abatement notice before taking further action.
29. Mr X reported a noise nuisance on 11 October 2020 but on attending the site the Council Officer did not witness a noise nuisance. Mr X confirmed the noise had stopped 20 minutes prior to the Council Officer attending.

Analysis

Council Policy on Witnessing a Statutory Nuisance

30. The Council’s policy specifically refers to the “witness” of a statutory noise nuisance. The Council explained it considers the term “witness” to mean when a Council Officer has been on site to see the statutory nuisance in person.
31. The EPA does not make any reference that a statutory nuisance needs to be witnessed in person. A Council must see objective evidence of a statutory nuisance, but this does not have to be a Council Officer being on site. Objective evidence of statutory noise nuisance includes recordings from noise monitoring equipment or video recordings (including audio) of the nuisance.
32. The Council’s policy for the necessity of witnessing the Statutory Noise Nuisance through one of its officers is fault. The Council needs to update its policy to reflect that objective evidence, not solely witnessing by a Council Officer, can demonstrate a statutory noise nuisance. The Council should provide guidance in its policy about what sort of objective evidence a person can provide to prove a statutory nuisance.

Initial Action and Delays

33. When Mr X reported the noise nuisance in August 2019, the Council acted in line with its policy. The Council sent a noise log sheet to Mr X who returned this to the Council. The Council wrote to the perpetrator to advise about the noise nuisance. Since no further contact was received by September 2019 it closed the complaint.
34. I would not find fault with the Council’s actions at this time.
35. However, the Council failed to act on Mr X’s noise nuisance reports from November 2019 to February 2020. Mr X contacted the Council, to either report noise nuisance or provide updated noise nuisance logs, on six occasions before the Council attended the site on 29 February 2020. While Mr X did not always contact the out of hours service, the Council failed to act on the back of repeated noise nuisance reports. This is fault.
36. When the Council Officer attended on 29 February 2020 and witnessed noise from outside the property, the Council took no further action. This is again fault from the Council.
37. When Mr X reported a noise nuisance on 15 March 2020, the Council took the correct steps in line with its policy. A Council Officer attended the site, witnessed a statutory noise nuisance and the Council sent an abatement notice to the perpetrator.
38. Had the Council not delayed, for four months in handling Mr X’s noise nuisance reports, the Council could have reached this point sooner. While there is no guarantee the Council would have seen evidence of a statutory noise nuisance sooner, the failure to act constitutes a lost opportunity.
39. While Mr X’s reports of noise nuisance have not stopped entirely, they have reduced since the Council issued the abatement notice.
40. The fault caused distress to Mr X through the heightened occurrence of noise nuisance and frustration in the lack of progress with the Council.
41. The Council should provide an apology to Mr X and a payment of £100 to reflect the distress and frustration caused.

Breach of the Abatement Notice and Further Action

42. Once the Council has issued an abatement notice it should prioritise any noise reports from this site to attend as quickly as possible upon report of noise nuisance.
43. Since the Council issued the abatement notice, the Council has only failed to attend the site on one occasion following a noise nuisance report. On all attended occasions other than in October 2020 it attended the site within the hour of Mr X reporting the noise nuisance.
44. The Council has in general acted in a suitable manner to attempt to witness the noise nuisance in person since it issued the abatement notice. I would not find fault with the Council’s actions in this respect.
45. However, the Council’s policy required it to witness a noise nuisance rather than accepting objective evidence of a breach of the abatement notice. This presented barriers to Mr X in evidencing a breach of the abatement notice to the Council. This is fault and again presents lost opportunity to Mr X.
46. The Council also witnessed a breach of the abatement notice on one occasion, 11 August 2020, but took no further action.
47. The Council is entitled to make the decision to need further evidence of a breach of an abatement notice. However, this decision must be made on a case-by-case basis and should be made when the evidence currently obtained does not clearly show an abatement notice was breached. The Council Officer’s report from 11 August 2020 is clear evidence the abatement notice had been breached. In line with the Council’s policy, it should take further action when it witnesses a breach of an abatement notice. The failure to act on a clear breach of an abatement notice is fault.
48. The Council has explained that witnessing a breach on more than one occasion adds strength to the Council’s case should it choose to prosecute. The Council officer’s report from 11 August 2020 also says “This is the first breach of notice served”. This shows the Council is operating to a system that requires the witness of a breach of an abatement notice more than once which is not in line with legislation or its own policy. This shows the Council to be operating by an unwritten policy which is inconsistent with correct practice. This is fault.
49. The Council needs to update its policy to provide clarity on the circumstances when it needs further evidence of a breach of an abatement notice. This will provide clarity to the public and ensure consistency in the handling of noise nuisance complaints by the Council.
50. The Council also needs to provide training to its staff about the requirement to take further action on evidence of the breach of an abatement notice.
51. The Council has confirmed it will continue to monitor the situation and Mr X’s complaint remains open.
52. The Council needs to review Mr X’s complaint to determine if sufficient evidence has been obtained to determine a breach of the abatement notice. The Council should invite Mr X to provide any evidence to support the decision such as video or audio recordings of the noise when making this decision.
53. I cannot say if the Council will conclude a breach of the abatement notice in August 2020. But the failure to review under the correct process is a lost opportunity since August 2020 and has caused further delays for Mr X. The Council should provide an additional payment of £100 to reflect the impact of this lost opportunity and delay.

Noise Monitoring Equipment

54. The Council’s policy also states that should visits by the Council be unsuccessful it should offer the installation of noise monitoring equipment to record any noise nuisance. The Council has not offered this to Mr X.
55. Noise nuisance recorded on noise monitoring equipment is not usually as strong evidence for prosecution as the Council witnessing the noise nuisance, but this does not make it inadmissible. The Council should have acted in line with its policy and offered Mr X noise monitoring equipment.
56. The Council explained it has temporarily suspended the use of Noise Monitoring Equipment because of the Covid-19 Pandemic. The Council is entitled to make this decision and I would not find fault in these circumstances.
57. The Council has offered to give Mr X priority on the out of hours telephone line. I consider this is a suitable offer from the Council to address the loss of the Noise Monitoring equipment. This priority should also be provided to any person calling to report the breach of an abatement notice.
58. The Council should take steps to make sure that service users and the general public are made aware about the temporary suspension of the Noise Monitoring equipment and priority on the out of hours telephone line for those calling to report a breach of an abatement notice.
59. The Council should provide an additional payment of £100 to reflect the confusion caused through its temporary suspension of the noise monitoring equipment, the delay in providing priority to Mr X on the out of hours line and the further delays and lost opportunity this caused Mr X.

Agreed action

60. Within one month of the final decision issued by the Ombudsman the Council should:
• Confirm to Mr X the out of hours telephone number for reporting noise nuisance and confirm he has priority when calling to report a breach of the abatement notice.
• Invite Mr X to provide any evidence, such as video or audio recordings, of the breach of the abatement notice and review Mr X’s complaint to determine if sufficient evidence has been obtained to determine a breach of the abatement notice.
• Provide Mr X with an apology and payment of £300 to reflect the distress, frustration and delays experienced.
61. Within three months of the final decision issued by the Ombudsman the Council should:
• Take steps to make sure that service users and the general public are made aware about the temporary suspension of the Noise Monitoring equipment and priority service for the out of hours telephone line for those calling to report a breach of an abatement notice.
• Update its Noise Nuisance Policy to reflect that objective evidence, not solely witnessing by a Council Officer, can demonstrate a statutory noise nuisance. The Council should look to provide clarity within its policy on what sort of objective evidence a person could provide when trying to prove a statutory nuisance.
• Update its Noise Nuisance Policy to provide clarity over the circumstances in which the Council needs additional evidence of a breach of an abatement notice before taking further action.
• Provide training to its staff about the requirement to take further action on evidence of the breach of an abatement notice.

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Final decision

62. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman