Summary: Mr X complains about the way the Council handled his noise complaint about a barking dog. He says it caused inconvenience, and the Council’s incompetence added to the anguish caused by the barking dog. The Ombudsman does not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mr X, complains about the way the Council investigated his noise complaint about a barking dog. Specifically, Mr X complains that the Council:
1. considered that his evidence was insufficient to establish a statutory nuisance; and,
2. unfairly expected him to frequently record noise throughout the day.
2. Mr X says he works full time so could not take time off work to record noise throughout the day. He says the Council’s incompetence added to the anguish caused by the dog barking. He also says it has caused months of inconvenience.

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The Ombudsman’s role and powers

3. 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)

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How I considered this complaint

4. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement.
5. I considered the relevant legislation, set out below.

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What I found

What should have happened

6. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to ‘abate’ (reduce) such nuisance. To be a statutory nuisance, the law says the noise must be unreasonable and must substantially interfere with the use or enjoyment of a home, or must injure, or be likely to injure, health.
7. Councils are required to investigate complaints of noise nuisance. A council will gather evidence to establish whether or not the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped. Failure to comply with an abatement notice can result in court action and a fine.
8. There is no fixed point at which noise becomes a statutory nuisance. Councils will rely on professional environmental health officers to gather and assess evidence of noise and decide if a statutory nuisance exists. To do this, officers may, for example, ask the person complaining of nuisance to complete and return diary sheets detailing the noise.
9. Officers may also set up recording equipment in the complainant’s home. Officers will normally visit the complainant’s home and/or a nearby property to identify any noise and its source. In assessing the noise, officers will take account of several factors such as what is causing the noise, the local area, time of day, and frequency and duration of the noise.
10. Councils must also consider how the noise affects the average person, who may not share the specific circumstances of the complainant. In practice, this means councils have some discretion deciding whether noise is a statutory nuisance. The primary aim of any action is to modify the behaviour of the perpetrator. However, a council cannot take action against the perpetrators of noise without robust evidence.
11. Councils will close a case if further ‘reasonable investigation’ does not show a statutory nuisance exists. On closing a case, Councils should give the complainant information about how they may take private action in the courts.

The Council’s Noise App

12. The Council has a Noise App which complainants can download onto their own tablet or mobile device. The Noise App records disturbances in 30 second bursts, and also records the date, time, and the complainant’s comments about the disturbance. Council officers use this information to assess and monitor noise complaints.

What happened

13. In November 2019, Mr X submitted noise recordings of a neighbour’s barking dog to the Council via the Noise App. A Council environmental health officer (Officer A) told Mr X that the noise was not prolonged enough to progress his complaint any further. She told Mr X she expected to see a certain number of recordings to show the dog was barking continuously.
14. Mr X sent more recordings in November and December.
15. Officer A told Mr X there was insufficient evidence to move his complaint forward. She said she had tried to visit the dog owner but was unable to make contact. She asked Mr X to continue submitting recordings via the Noise App.
16. Mr X sent the Council more recordings via the App.
17. Officer A told Mr X she reviewed all the evidence he submitted but could not establish that the noise was a statutory nuisance. She explained this was because the evidence did not show a continued nuisance, or that Mr X was affected for prolonged periods. Officer A said this would involve taking multiple recordings.
18. Officer A said she would continue to review evidence Mr X submitted. She said she would continue to try to work with the neighbour. She also said the Council could install noise monitoring equipment which could make it easier for Mr X to record noises. Officer A told Mr X he could make a formal complaint and signposted him to the complaints procedure.
19. Mr X submitted no noise recordings between January and June.
20. In June, Mr X complained to the Council.
21. The Council’s response to the complaint said there had been gaps in Mr X’s evidence. It said the evidence therefore did not show the continuity the Council needed to see to find a statutory nuisance.
22. Mr X responded, saying it was unacceptable and unreasonable to expect him to record noise every half hour or so when he is employed.
23. The Council responded. It said Mr X’s recordings in December did show the regularity it would want to see in order for his noise complaint to progress. However, the Council said it would need to see this over a couple of weeks on a daily basis. It said the evidence Mr X submitted only represented one day. It said Mr X did not submit any more recordings of dog noise after this. The Council repeated that the gaps in Mr X’s evidence meant it could not find a statutory nuisance.
24. The Council said it was working with the neighbour. It also said it had offered to install noise monitoring equipment for Mr X. It said Mr X’s noise complaint was still under investigation.
25. Mr X replied, disagreeing that the quality and length of his recordings did not show a statutory nuisance. He said it was unacceptable to have to record the dog barking every 15 to 30 minutes over two weeks to demonstrate a statutory nuisance.
26. The Council responded. It said it was satisfied it had properly considered Mr X’s recordings. It said statutory nuisance is a matter of professional judgement.
27. In October, Mr X complained to the Ombudsman.
28. In November, Mr X submitted four more noise recordings. The Council responded saying these recordings did not show a statutory nuisance because they were taken over a three-week period. It said it could not progress Mr X’s noise complaint any further and had closed its investigation.
29. The Council told Mr X he could take his own private legal action.

Analysis

Insufficient evidence

30. Mr X complains that the Council considered that his evidence was insufficient to establish a statutory nuisance (part a of the complaint). He says the Council failed to review his evidence.
31. I do not agree with Mr X that the Council failed to review his evidence. I find that the Council has reviewed his evidence and has not been able to establish that there is a statutory nuisance from the neighbour’s barking dog.
32. I am satisfied that the Council properly and appropriately investigated Mr X’s reports and evidence of his noise complaint. I find no fault in the way the Council investigated this complaint. Without evidence of fault in the way the Council investigated Mr X’s noise complaint, I cannot question the decision officers made.
33. Further, I find evidence of good practice in the way the Council dealt with Mr X’s reports of noise nuisance. While the Council was unable to find a statutory nuisance, it is clear that the Council has gone to some lengths to try and work with the neighbour to reduce noise. This is positive and appropriate.
34. Officer A signposted Mr X to the Council’s complaints procedure when it did not find a statutory nuisance. This is good practice. Also, the Council told Mr X that he could take private legal action. This is appropriate.

The Council’s expectations

35. Mr X complains that the Council unfairly expected him to frequently record noise throughout the day (part b of the complaint).
36. I do not agree that it was unfair of the Council to expect Mr X to frequently record noise. There must be robust evidence for a council to establish a noise nuisance. For this reason, I do not find the Council at fault.

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Final decision

37. I have completed my investigation and I do not uphold Mr X’s complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman