Summary: The Council’s failure to consider whether Mr X’s reports of noise from a neighbouring skate park are a statutory noise nuisance or anti-social behaviour is fault. The Council has agreed to apologise, pay Mr X £250, and investigate the matter fully.

The complaint

1. Mr X complains the Council has failed to take action to resolve noise from users of a neighbouring skate park late at night and early in the morning.
2. Mr X says the noise from the park causes a significant disturbance. He also says the Council’s handling of his complaint resulted in avoidable confusion and frustration.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. I considered the complaint and the information Mr X provided.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
8. Mr 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

Anti-social behaviour

9. 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.
10. For example, councils may approach a complaint as an environmental health issue where the complaint is about noise or pollution.

Statutory noise nuisance

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
12. 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
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.

What happened

18. Mr X lives in a property which is part of a relatively new housing development. The housing development is close to a park managed by the Council. The park includes a skate park which was built before the housing development.
19. Mr X says the metal ramps at the skate park create a lot of noise when in use. Mr X contacted the Council and the Police about the matter in 2020 because the skate park was being used late at night and early in the morning. Mr X says users of the skate park bring lights so they can continue to use the skate park when it is dark. Mr X has complained to the Council about the noise nuisance residents have suffered because of this.
20. When Mr X contacted the Council about the matter in late 2020, the Council advised him to make a complaint.
21. The Council responded to Mr X’s complaint in November and December 2020. The Council’s first response said when the skate park is being used for its intended use, regardless of the time of day, this is not anti-social behaviour.
22. But the Council later said it should have installed signs, in line with a commitment it previously made, saying what the hours of use of the skate park are. It said this would allow the Police to enforce the relevant Council bylaws for parks about when the park can be used. These signs say the skate park should be used between “dawn and dusk”.
23. The Council said it would now do this and include the same wording as used in the bylaw. The Council also said it would work with the Police about priority areas for patrols and tell the Police about the new signs.
24. In response to my enquiries, the Council said it did install the signs, but these have since been stolen. The Council also plans to install panels to “deaden” the sound from the ramps. However, it does not currently have the budget to do this.

My findings

25. In his communication with the Council, Mr X asked several times to whom he should report use of the skate park outside daylight hours. He asked for clarification of when the park could be used and what the Council’s enforcement powers were. The Council’s responses were inconsistent and confusing. At various times Mr X was:
• Signposted to the Police, which then referred him to the Council’s ASB team
• Told to report issues to the Council department responsible for parks
• Advised to make a complaint
26. In response to my enquiries, the Council said that any reports of ASB or noise nuisance would be sent to the Parks and Countryside service first. This creates an unnecessary extra step for members of the public. This department does not have statutory duties to deal with ASB or noise nuisance. Nor do its officers work outside standard business hours.
27. In its communications with Mr X, and in the internal communications provided in response to my enquiries, the Council’s focus is on whether a particular by-law about parks is enforceable in this park. The evidence shows the Council failed to consider its duties and powers under either the Environmental Health Act or the Anti-social Behaviour, Crime, and Policing Act. This is fault.
28. Mr X reported particular concern about noise from the skate park late at night. This related specifically to the noise caused by the metal ramps. This could be a statutory noise nuisance. There is no evidence the Council told Mr X that he could report the matter to its Environmental Health team. Nor did the Council alert the Environmental Health team itself.
29. Had Mr X been referred to the Environmental Health team, that team would have investigated and decided if the noise “unreasonably and substantially interferes with the use or enjoyment of a home or other premises”. The Council should have made this decision and told Mr X about it. Instead, Mr X lives with continuing uncertainty about what the Council’s duties and powers are to deal with noise from the park. This is an injustice to Mr X.
30. Similarly, there is no evidence that the Council’s ASB team has considered Mr X’s reports. Instead, Mr X has received conflicting advice from other departments about whether use of the skate park can ever be ASB, and what the Council and Police can do about it. The Council’s failure to provide Mr X with accurate and consistent information caused avoidable confusion. This is an injustice to Mr X.

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Agreed action

31. To remedy the injustice to Mr X from the faults I have identified, the Council has agreed to:
• Apologise to Mr X
• Pay Mr X £250 in recognition of his avoidable confusion and time and trouble
• Begin an investigation into whether noise from the skate park is a statutory nuisance. Inform Mr X of the outcome.
• Provide Mr X with a named contact in the ASB team who will consider whether there is ASB, and if so what action to take. Inform Mr X of the outcome.
32. The Council should take this action within four weeks of my final decision.
33. The Council should also take the following action to improve its services:
• Produce guidance for staff to ensure complaints of ASB or possible statutory nuisance in parks are reported to the appropriate service.
34. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

35. I have completed my investigation. There is fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman