Summary: Ms X complained the Council did not take action against her noisy neighbours. We have found the Council at fault not acting sooner. This caused Ms X avoidable distress. The Council has agreed actions to remedy Ms X’s injustice.

The complaint

1. Ms X complained the Council has not taken appropriate action against her neighbour for all the noise and anti-social behaviour she has experienced. She said she does not feel safe in her own home and has had to stay in hotels and with family to escape the noise.

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The Ombudsman’s role and powers

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

4. I have considered Ms X’s complaint and the information she has provided.
5. I have also considered the Council’s response to Ms X and to my enquiries.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law

Statutory nuisances

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. 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
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises
8. 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.
9. 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.
10. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
11. 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.

Abatement notices

12. 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.
13. 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.
14. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Anti-Social Behaviour

15. Section 17 of the Anti-Social Behaviour Crime and Policing Act 2014 places a duty on councils to take action to combat anti-social behaviour. Councils will have a team to respond to and investigate complaints about anti-social behaviour, liaising with the police and other agencies as necessary. The Council can discharge its duty in a variety of ways. This includes informal intervention (mediation/advice) and the use of powers under:
• The Environmental Protection Act 1990
• The Anti-Social Behaviour, Crime and Policing Act 2014.

Community Protection Notices

16. Councils and the police can issue CPNs 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 to stop and, where appropriate, require reasonable steps to be taken to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice.
17. Council’s must issue a written warning in advance of the CPN (a Community Protection Warning). It is for the person issuing the written warning to decide how long is appropriate before serving a CPN.
18. A council may issue a CPN while it is investigating whether the behaviour constitutes a statutory nuisance. Issue of a CPN does not relieve the council of its obligation to serve an abatement notice under Part 3 of the Environmental Protection Act 1990 where the relevant test is met.

What happened

When the problems started

19. Ms X said there is a long history of noise and abuse from her neighbours since they moved in as tenants in 2009. The main noise problems, started after they bought the house from the Council through right to buy. They started major renovations in summer 2020.

Noise diaries

20. The Council provided Ms X with noise diaries on 25 August 2020 after she reported incidents of noise. In response to my enquiries, the Council explained that the evidence gathering process regarding noise nuisance is the most challenging. It said there is often a difficulty in identifying what is reasonable.
21. The Council said, it is not unreasonable for a person to undertake house renovations. However, these should be carried out during sociable hours; 8am-8pm.
22. I have seen the diary sheets that Ms X completed. They show a very detailed account of all the activity happening every day from 28 August. It appears that often building work started earlier than 8am and continued until 11pm at night, sometimes later.

Council opened Ms X’s case

23. The Council explained the process for opening a case regarding noise nuisance is via a report made to the Council’s anti-social behaviour triage team. It said Ms X did this initially and the Council supplied her with noise diaries. The Council said, no cases are opened at this time until the diaries are returned, and an assessment is conducted to establish who would be the most appropriate team or person to deal with that particular enquiry.
24. In this case, the Out of Hours team (OOH) visited Ms X’s neighbour’s property following a noise complaint from Ms X on 1 September 2020. The case notes state the officer believed the builders at the property were watching for the Council’s van and being quiet so they could not witness the noise. The officer spoke to the builder who said he had ‘no intention of stopping work at any time unless he was shown some legislation to say otherwise’. The Council opened Ms X’s case on this day.
25. The Council has now explained, at this point, the officer stepped outside the process and followed inaccurate advice. It acknowledges that this was with the best intentions but amounts to fault, and subsequently caused further problems down the line by raising Ms X’s expectations.
26. The Council provided the builder with a copy of the relevant legislation showing construction times on 3 September.

Community Protection Warning (CPW)

27. The Council served a CPW letter to Ms X’s neighbour on 11 September 2020.
28. The notices identified the loud construction work after the permitted legislation hours to be persistent and having a detrimental impact on the quality of life of others. It said this had been continuous since August 2020 and had been witnessed by the OOH team. It specified the hours that work can take place and stated this should be actioned immediately.

The wrong legislation

29. The Council explained that CPWs and Community Protection Notices (CPN) are intervention tools laid out in the Anti-social Behaviour Crime and Policing Act 2014. It said they can be an effective tool where other legislation does not meet the requirements. They can also be run alongside other pieces of legislation.
30. The Council went on to explain a CPW could have been used in Ms X’s case. However, the officer confused the issue as they quoted within the CPW, the Environmental Protection Act 1990 and the Control of Pollution Act 1974 using the timescales given as guidance within these Acts.
31. It said the restrictions imposed by the CPW, used at this early stage, were not reasonable or proportionate.

Liaising with the police

32. As well as the Council’s involvement in Ms X’s case, the police have played a role. Ms X is pleased with how the police have handled the situation. As part of my enquiries, I asked the Council what contact, if any, it had with the police in Ms X’s case.
33. The Council provided me with copies of the email contact it had with the police in October and November 2020.
34. In October, the police asked the Council whether it currently had an open case with Ms X. The police explained it had recorded a crime of harassment between Ms X and her neighbour and was concerned the situation was escalating.
35. The Council explained that the OOH team raised Ms X’s expectations when it wrongly served a CPW. It said the Council was mediating between Ms X and her neighbour and said it would consider action if noise was witnessed at an inappropriate time by the OOH team. The Council hinted that Ms X and her neighbour have a history of not getting along.
36. In November, the police made contact with the Council again. They asked for any updates of Ms X’s situation. The Council replied that Ms X had only made one email complaint in the past two weeks. It said it was installing NME in her property for one week.
37. Ms X disagrees with what the Council told the police. She said, during the month of November, she called the OOH team out 8 times because the noise was so bad. She said she emailed her caseworker on 16 November and this is the ‘one email complaint’ the Council told the police about.

CPW revoked November 2020

38. On 11 November, the Council wrote to Ms X’s neighbour. It said the Council had reviewed the case and the CPW previously issued was in fact incorrect, and the Council was rescinding the warning. It explained the legislation and prohibitions quoted within the warning were not valid in a domestic residential setting and apply to commercial premises only.
39. The Council told Ms X’s neighbours that it continued to receive complaints about building work being carried out at unsociable hours. It also highlighted the anti-social and abusive behaviour that had been witnessed by the OOH team.
40. The Council specified the hours that building work should take place and warned the neighbour of the actions the Council would take against him if the behaviour continued.
41. Ms X said the noise became much worse after the CPW was revoked. She called the OOH team and stayed with relatives during the week after 11 November. On 16 November, Ms X moved in with relatives until the NME equipment was installed. This was because, she felt vulnerable and unsafe as the neighbours felt they could do what they liked once the CPW was removed.

Noise monitoring equipment (NME)

42. The Council said that it suggested the installation of NME to Ms X on 4 November 2020 as part of its stage 2 response. Ms X said, it was only when she contacted the Council on 11 November that she was added to the waiting list.
43. In response to my enquiries, the Council explained that there is a limited number of NME units, as well as a backlog of customers. The Council installed the NME on 8 December 2020 and removed it on 17 December.
44. The Noise Monitoring Report (dated 26 January 2021) identified some drilling and banging. It stated that while it was not exceptionally loud, it was instructive inside the complainant’s property. It said the noise did not take place during the most sensitive hours but on one day it continued well past the requested hours of 08:00-20:00. It recognised the noise could have been significantly louder during the previous stages of the work.
45. The report concluded the recordings did not support the existence of a statutory nuisance and could not be used as the basis for action under the Environmental Protection Act 1990.
46. Ms X said that if the Council had added her to the waiting list for the NME sooner, it may have been installed sooner and would have captured all the noise and abuse she had to endure in November.

Council further action

47. On 10 February, the Council wrote to Ms X. It informed her that a new case officer had been allocated to her case. It also said that the Council will install the NME again, for 7 days. It explained that Ms X should only record noise when it occurs after 8pm.
48. It said, the Council would then analyse the findings and if a statutory nuisance exists, it will serve a Section 80 Noise Abatement Notice on Ms X’s neighbour.
49. On 23 March, the Council wrote to Ms X’s neighbour. It said the OOH team attended their property on 20 March and witnessed an unacceptable level of noise caused by loud music at a family gathering. The Council warned the neighbour that if it witnesses the noise again, it may serve an abatement notice.

Noise Abatement Notice served

50. Following the OOH team witnessing the noise on 15 April, the Council served a Section 80 Noise Abatement Notice on Ms X’s neighbour on 19 April. This Notice was for noise caused by loud music, not building work.

Analysis

51. From the evidence I have seen, it is clear the situation experienced by Ms X has been extremely difficult.
52. The law says the Council has a duty to investigate any report of a nuisance. It does not specify exactly what needs to be done, and when. It says councils should rely on suitably qualified officers to gather evidence using, for example diary sheets, noise monitoring equipment, and site visits.
53. The Council did use all these methods. However, from the evidence I have seen, the investigation was not carried out in a co-ordinated manner and mistakes were made. The lack of communication between the OOH team and the anti-social behaviour team is evident during the Council’s investigation. For example, the OOH witnessed and recorded Ms X’s neighbour’s behaviour in September 2020 and 1 November 2020. This was either not passed on to or not followed up by the anti-social behaviour team.
54. The Ombudsman cannot say when the Council should have taken formal action against Ms X’s neighbours. This is the Council’s judgement. However, given the noise had been witnessed by the Council, it is fault that it did not take more formal action in 2020.
55. The Council has demonstrated that on 19 April 2021 (8 months after Ms X fist reported the nuisance) the situation had reached the threshold for the Council to issue an Abatement Notice.
56. From the evidence I have seen, although the source of noise is different from when Ms X reported it in August 2020, the level and impact on Ms X is the same. Therefore, on the balance of probabilities, the Council would have reached the same decision to issue an abatement notice, it had properly considered the evidence from the OOH team back in 2020.
57. The Council, in its letter dated 11 March, said it was closing Ms X’s case and there was not enough evidence to proceed. However, I have seen the OOH team’s reports which show they had repeatedly witnessed the noise and abusive behaviour from Ms X’s neighbour since August 2020.

Delayed action

58. I have found fault with the Council for its delay in taking formal action against Ms X’s neighbour. I consider the evidence from Ms X as well as the Council’s own OOH team should have been enough for the Council to make this decision soon after Ms X first reported the nuisance in 2020.

Raised expectations and uncertainty

59. The Council itself acknowledged that when it opened Ms X’s case in September 2020, it raised her expectations. I have not found fault with the Council for opening the case at that time as the evidence showed it was needed. However, the inaction that followed meant that Ms X’s expectations were raised, and she experienced the uncertainty of what the likely outcome might be. This caused her avoidable distress.

Community Protection Warning

60. The Council agrees it was at fault for issuing the CPW in September 2020. Although it was done with the right intentions, it was not correct in terms of the legislation it was issued under. This was fault.

Ms X’s personal circumstances

61. The avoidable distress caused to Ms X is significant given her personal circumstances. Ms X was heavily pregnant and then had a young baby in the house whilst the noise and abuse took place. This left her feeling vulnerable and unsafe in her own home. My recommendations reflect this.

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Agreed action

62. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Ms X for delay in taking action against her neighbours;
2. Pay Ms X £500 for the avoidable distress caused its delayed action against her neighbours.
3. Confirm it has/will take further action if Ms X’s neighbours do not comply with the Abatement Notice within the given timescales.

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Final decision

63. I have completed my investigation. The Council was at fault for its delayed action against Ms X neighbours. This caused Ms X avoidable distress.

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Investigator's decision on behalf of the Ombudsman