Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

London Borough of Harrow (20 006 653)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 18 Mar 2022

The Ombudsman's final decision:

Summary: Mr B complained that the Council has failed to take adequate action to address noise nuisance from a barking dog at a neighbour’s property. We found the Council has taken appropriate action in relation to the matter. However, it was at fault in failing to keep Mr B informed of progress. In recognition of the injustice caused by this, the Council has agreed to apologise to Mr B and make a payment to him. It has also agreed to remind officers to keep complainants informed throughout the course of an investigation and when deciding close a case.

The complaint

  1. Mr B complains that the Council has failed to take adequate action to address noise nuisance from a barking dog at a neighbour’s property. He says this has caused him and his family distress and loss of sleep.

Back to top

What I have investigated

  1. I have investigated events which took place from March 2020.

Back to top

The Ombudsman’s role and powers

  1. 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)
  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)

Back to top

How I considered this complaint

  1. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Antisocial behaviour

  1. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
  2. For example, they may approach a complaint:
    • as an environmental health issue, where the complaint is about noise or pollution;
    • as a planning matter, where the complaint is about an inappropriate use of a building or facility;
    • as a licensing matter, where the complaint is about a licensed premises, such as a pub or nightclub;
    • as part of their duties as a social landlord, where the alleged perpetrator is a council tenant (although we are unable to investigate the council’s actions as a social landlord); or
    • using their powers under the Anti-social Behaviour, Crime and Policing Act 2014 including the power to issue a community protection notice;

Statutory nuisances

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
  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, it must:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
    • injure health or be 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) 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. Once the evidence-gathering process is complete, an environmental health officer (EHO) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.
  6. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation

Section 82 of the Environmental Protection Act 1990

  1. A member of the public can take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
  2. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

Community Protection Notices

  1. Under the Anti-social Behaviour, Crime and Policing Act 2014 Councils can issue a Community Protection Notices (CPN) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice.
  2. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.
  3. A council may issue a CPN while it is investigating whether the behaviour is a statutory nuisance. The issuing of a CPN does not affect the council’s obligation to serve an abatement notice under Part 3 of the Environmental Protection Act 1990, where the relevant test is met.

The Council’s policy

  1. The Council’s policy on the regulation of statutory nuisances, states that the methods used to carry out the investigation will depend on the nature of the case but may include: verbal advice; written advice; site visits and inspections; requesting that the complainant keep diary sheets; and use of monitoring equipment.
  2. The policy states that the Council will usually contact the person alleged to be responsible for the nuisance complained about at an early stage before any formal action is taken to make them aware of the complaint and seek their cooperation in resolving the matter.
  3. The policy states that where an intermittent nuisance is complained about, the Council will carry out three visits at times when the nuisance is expected to be occurring unless it is clear from the first visit that the matter complained about could not amount to a statutory nuisance. Further visits or monitoring will only be carried out if the investigating officer has good grounds for believing that a statutory nuisance is likely to be witnessed.
  4. If a statutory nuisance has not been established at the end of the investigation, the complainant will be advised of the outcome and given advice about other avenues they may wish to pursue. The case will be closed and no further investigation will be carried out unless significant new evidence is presented which suggests a nuisance could be substantiated.

Key facts

  1. In 2018 Mr B reported problems with a neighbour’s dog constantly barking. Following action taken by the Council the issue was resolved.
  2. In April 2019 Mr B contacted the Council saying the barking had resumed. An EHO visited the area in June 2019 but did not witness the dog barking.
  3. Mr B did not raise the issue again until March 2020.
  4. In April 2020 the Council sent Mr B a noise pack which included diary sheets for him to complete. It explained that, to take action, officers needed to witness the noise and be able to demonstrate that it constituted a statutory nuisance.
  5. On 4 May 2020 Mr B submitted another complaint about the noise. The Council responded the following day explaining that diary sheets had been sent to him in April. It enclosed a further copy of the noise pack and asked Mr B to complete and return the diary sheets. It explained that, once this had been done, an officer would investigate.
  6. Mr B returned the diary sheets on 2 June 2020. The case was allocated to an EHO the following day.
  7. Mr B chased the Council on 17 June and 2 July 2020.
  8. On 3 July 2020 the Council wrote to the dog owners explaining it had received complaints about noise nuisance from a barking dog at their property. It explained it would carry out periodic visits as part of its investigation.
  9. Officers visited the area on 5, 9 and 11 July 2020 at different times but heard no barking.
  10. On 14 July 2020 Mr B complained to the Council about lack of contact since he submitted the diary sheets on 2 June 2020.
  11. EHOs visited the area again on 25 July and 8 August 2020 but heard no barking.
  12. On 19 October 2020 Mr B complained to the Ombudsman. We contacted the Council. A manager responded explaining that Mr B had not yet made a formal complaint to the Council so his complaint to the Ombudsman was premature. She accepted officers should have updated Mr B in August but had failed to do so. She asked an EHO to contact Mr B to see if the Council could assist further.
  13. On 13 November 2020 the EHO telephoned Mr B to discuss the matter. The following day she visited the area and sent a text message to Mr B saying she had not witnessed any barking.
  14. Officers visited again on 21 November and 1 December 2020 at various times but did not hear any barking.
  15. On 11 December 2020 Mr B sent a text to the EHO asking whether she had visited again. He said he had heard the dog barking non-stop for the past few days. At 1.14 am the following day the EHO sent a text message to Mr B saying officers were outside but had heard no barking yet. She also explained they had visited at various times of the day and night over the last month and had spoken to the neighbours and written to them.
  16. On 19 December 2020 Mr B sent a text to the EHO saying the dog was making the most noise between 7 pm and midnight every night. The EHO responded saying officers had visited at various times between 7 pm and midnight but had not heard anything.
  17. On 23 December 2020 Mr B contacted the EHO saying that over the past three nights the dog had been making significant noise between 7 and 10.30 pm.
  18. On 31 December 2020 the EHO told Mr B she had heard the dog barking and had spoken to the owner. She said she would send a CPN warning letter.
  19. On 18 March 2021 Mr B sent a text to the EHO saying the CPN warning letter seemed to have worked as he had not heard the dog for over two months but, in the last two weeks, the dog had begun barking again. He said the owners had a habit of taking the dog away every time they received a warning but then brought him back after a couple of months.
  20. On 1 April 2021 Mr B contacted the EHO saying the dog had been barking most nights and causing a lot of disturbance. The EHO confirmed she would visit the following night.
  21. On 13 April 2021 Mr B sent a text to the EHO asking whether she had visited as there had been no improvement. He sent a further text on 27 April 2021.
  22. On 28 April 2021 the Council served a CPN warning letter on the dog owners which prohibited them from allowing the dog to bark for long periods, particularly outside. It required them to bring the dog inside immediately if it was barking, and ensure the dog was supervised. The EHO sent an email to Mr B explaining the action she had taken.
  23. On 10 May Mr B contacted the EHO saying there had been no improvement.
  24. On 2 June 2021 Mr B contacted the officer again saying there had been no improvement. The EHO responded asking what time the dog had been barking the previous evening. Mr B confirmed it was between 10 and 11 pm. The EHO said she would serve a CPN.
  25. On 11 June 2021 the Council served a CPN on the dog owners. The EHO sent a text to Mr B confirming this.
  26. On 22 June 2021 Mr B sent a text to the EHO saying there had been no improvement. The EHO said officers had been monitoring the previous week and asked Mr B to confirm what was generally the worst time. He said this was between 9 and 11 pm.
  27. On 16 August 2021 Mr B sent a text to the EHO saying that, as there had been no progress, he would be writing a letter of complaint. He said the noise was as bad as ever. The EHO responded saying officers had visited but had been unable to witness the dog barking. She sent a further text on 1 September 2021 saying she had visited again but had not witnessed the dog barking. She said she would speak to the dog owners again.
  28. An EHO visited again on 23 and 25 October 2021 at various times but heard no barking.
  29. The case was closed on 25 October 2021 following a review by a manager because no noise had been witnessed.

Analysis

The Council’s investigation

  1. A few days after Mr B contacted the Council about the dog barking, the UK went into a national lockdown because of COVID-19. The Council says that, during the COVID-19 pandemic, the Environmental Health department’s priorities and responses to complaints has varied. It says officers were advised not to visit complainants during periods of lockdown and some members of staff were re-tasked to focus on the control of infection and the impact of the pandemic. Inevitably, this impacted on the Council’s ability to respond as quickly as it would like and led to a significant backlog in some areas of work. It also meant that, on occasion, the Council had to relax or not meet its standard response times.
  2. The Council has explained that, during periods when officers could not enter people’s premises to determine whether there was a statutory nuisance, they used the Antisocial Behaviour Crime and Policing Act 2014 to serve CPN’s to deal with complaints as effectively as possible in the circumstances. There are no grounds to criticise this approach.
  3. I am satisfied officers have taken action to resolve the problem. They visited the area numerous times to try to witness the noise despite the difficulties caused by COVID-19 when nuisance monitoring was not considered to be a priority because of restrictions on travel and social contact. I am also satisfied officers acted appropriately by initially taking an informal approach by speaking to the neighbours and writing to them. I have seen no evidence that officers visited between August and October 2020 but this coincided with a time when further COVID-19 restrictions were put in place.
  4. Visits began again after the Ombudsman contacted the Council in October 2020. Officers visited several times but only witnessed the dog barking once. So, they did not have enough evidence to conclude there was a statutory nuisance and serve an abatement notice under the EPA. However, they issued a CPN warning letter in December 2020 to try to stop the noise. As a result, matters improved.
  5. Mr B contacted the Council again in March 2021 when problems recurred. Officers did not witness the dog barking despite several visits. They served further CPN warning letters and ultimately a CPN. Mr B says this did not resolve the situation, but officers could not prosecute the dog owners for a breach of the CPN because they had not witnessed the dog barking since the notice was served.
  6. The Council closed the case in October 2021 despite Mr B saying on 16 August 2021 that there had been no improvement. The Council was entitled to reach the decision to close the case given that officers had only heard barking once despite making numerous visits since March 2020. The Council has many cases to investigate and limited resources. So, after a period of time without witnessing the noise, officers were entitled to exercise their professional judgement to close the case. They cannot continue to visit indefinitely.
  7. The Council provided Mr B with information in April 2020 on how to take his own action for nuisance if the Council was unable to witness it. It was open to him to pursue this course of action.
  8. However, the Council says that, if Mr B is still experiencing a problem with noise, it will revisit the matter or provide further advice if he wishes to take his own action for nuisance.

Communication

  1. I find the Council should have acknowledged receipt of Mr B’s diary sheets in June 2020 and kept him informed of the progress of its investigation following that. There was no communication from the Council after 2 June 2020 until 13 November 2020 after the Ombudsman contacted the Council. This was fault.
  2. The Council also failed to keep Mr B informed after he advised that the CPN had not been effective in June 2021. He sent an email to the Council on 16 August 2021 saying he would be making a formal complaint. The EHO responded on 1 September 2021 but then failed to contact him again.
  3. I accept communication was difficult at the outset of the COVID-19 pandemic and the Council ended up with a backlog of work because of the situation. But by mid-2021 restrictions had eased and it should have been able to keep Mr B updated about progress.
  4. The Council also failed to inform Mr B when it closed the case in October 2021. It should have informed him of its decision to close the case and reminded him of his right to pursue the matter himself under Section 82 of the EPA.
  5. The Council accepts its communication with Mr B has not been as good as it could have been and that it could have kept him better informed of progress and provided a receipt for his noise diaries.
  6. The failure to keep Mr B informed caused him a significant injustice. He suffered distress and uncertainty and was put to time and trouble in having to repeatedly chase the Council for updates. He had to complain to the Ombudsman in November 2020 to receive an update from the Council and had to complain to the Ombudsman again in August 2021.

Back to top

Agreed action

  1. The Council has agreed that, within one month, it will:
    • send a written apology to Mr B for the distress and inconvenience caused by its failure to keep him informed and pay him £250;
    • contact Mr B and review the situation to decide whether further action should be taken or further advice provided; and
    • issue a reminder to officers that they should keep complainants informed throughout the course of an investigation and when a decision is made to close the investigation.

Back to top

Final decision

  1. I find the Council took appropriate action to investigate Mr B’s complaints about noise nuisance. However, I find it was at fault in failing to keep Mr B informed about progress.
  2. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Back to top

Parts of the complaint that I did not investigate

  1. I have not investigated events which took place prior to March 2020. Mr B complained to the Council about the noise in April 2019. Officers did not witness the noise and took no further action but Mr B did not raise the issue again until March 2020, nearly a year later. If Mr B was dissatisfied with the Council’s response he could have complained to the Council and the Ombudsman in 2019.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page