Summary: The Ombudsman found fault by the Council on Ms J’s complaint about its failure to take enforcement action against noisy neighbours. It failed to provide us with complete records, show it considered and reached a decision on her acoustic report, and failed to show whether officers properly considered and reviewed the case after witnessing two breaches of an abatement notice. The agreed action remedies the injustice caused.

The complaint

1. Ms J complains about the Council failing to take effective enforcement action against her neighbours who are causing her a noise nuisance: as a result, her quality of life is affected as she is constantly anxious about their behaviour, and she has suffered financially as she paid £700 for her own noise assessment and £1,000 for wall insulation.

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The Ombudsman’s role and powers

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)
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. 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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Environmental Protection Act 1990

5. Under the Act, noise emitted from premises so as to be prejudicial to health or a nuisance amounts to a statutory nuisance. (section 79 (g))
6. Where a local authority is satisfied a statutory nuisance exists, or is likely to occur or recur in its area, it shall serve an abatement notice requiring; the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; the execution of such works, and the taking of such other steps, as may be necessary for any of these purposes. (section 80 (1))
7. If a person served with an abatement notice, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he or she shall be guilty of an offence. (section 80 (4))
8. A local authority can act to stop or restrict a nuisance by applying to court for an injunction.

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Covid-19 pandemic

9. From March to May 2020, England was in the first of three national lockdowns. People could only leave their home for limited purposes including travelling to and from work, but only where this was necessary.
10. In May, the Government said people who could not work from home should return to the workplace.
11. In September, the Government announced new restrictions including working from home.
12. A second national lockdown came into force from November to December.
13. The third national lockdown was in place from January to March 2021.

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District team service plan (2019-2021)

14. The team will request a case review once there have been two breaches of the abatement notice.

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How I considered this complaint

15. I considered all the information Ms J sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a partial copy of which I sent her. I did not send a complete copy because some of the information is about third parties which needs to remain confidential. I sent a copy of my draft decision to Ms J and the Council. I considered their responses.

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What I found

16. Ms J has lived in her house for more than seven years. About two years ago, her current neighbours moved in. Ms J experienced problems immediately with the neighbours. They would bang on the walls, scream, shout, play loud music, and shout abuse at her. This was a nightly problem which she says is continuing.
17. Ms J believes they rent the property from a landlord who is a Council employee. The Council says the property is privately owned which means there is no landlord. In response to my draft decision, the Council agreed to make further enquiries to clarify the ownership of the property.
18. At a cost of about £700, Ms J had her own noise assessment done. This showed there was a problem with noise. She sent it to the Council who she says failed to explain why it could not use it.
19. She accepts the Council installed noise monitoring equipment. This made about 20 hours of recording over six days. The Council listened to the recordings but said the noise recorded was just everyday life.
20. These are key dates:

2020:

21. January: Ms J contacted the Council about noise from her neighbours. The Council asked her to keep logs of their behaviour, which she did and returned. The Council wrote to her neighbours, warning it had received reports.
22. February: The Council installed noise monitoring equipment, but this did not show evidence of a statutory nuisance.
23. March: Ms J wrote to the Council complaining the problem continued. The Council wrote to her neighbours again warning them about receiving a report of noise nuisance. National Covid-19 restrictions were introduced. As a result of this, the Council said it looked at witnessing noise externally without entering properties and introducing personal recordings on mobile smart phones. Eventually, the Council asked complainants to create a video with sound to show where they were at the time of recording which helped get an overall impression of impact.
24. April: The Council received a letter from Ms J after telling her the evidence did not show a statutory nuisance.
25. July: Ms J sent a copy of the acoustic assessment report she had done to the Council. She told the Council the police served the neighbours with a Community Protection Notice. This stops a person over 16 from committing antisocial behaviour which spoils the community’s quality of life.
26. August: Ms J contacted the Council about noise. The Council wrote to the neighbours in response, warning it was gathering evidence. It also warned what might happen if officers witnessed a statutory nuisance.
27. September: The Council says there was an internal referral to the night time enforcement team. There is no information about what happened as a result.

2021:

28. January: The Council says it received a complaint which was resolved through ‘problem solving’. There is no information about what the complaint was about or what ‘problem solving’ was.
29. May: The Council installed noise monitoring equipment which found evidence of a statutory nuisance. The Council asked Ms J to keep a log and told her it had written to her neighbours. It also sent the neighbours another warning letter. No evidence was sent showing what prompted the Council to contact both parties and install the equipment.
30. June: The Council served the neighbours with an abatement notice. This was for amplified sound, not raised voices.
31. August: The Council installed noise monitoring equipment, but this did not show a statutory nuisance.
32. October: Officers visited and witnessed two breaches of the abatement notice. They spoke to the neighbours and issued them with invoices to cover the cost of their work. An officer spoke to Ms J and suggested mediation. She refused because of the neighbours’ abusive and hostile behaviour towards her.
33. November: Ms J cancelled the installation of noise monitoring equipment. This was because she thought the neighbours had moved but, it later turned out they had only moved for a few weeks.
34. The Council had no further contact from Ms J. She says she gave up sending evidence to the Council because it goes round in circles, and nothing happens. She also told me problems with the neighbours continue.
35. Ms J refused mediation because she feared the neighbours.
36. In response to our enquiries, the Council explained:

• not all contact with Ms J was recorded due to IT problems during the Covid-19 pandemic and remote working;
• it used to require officers to review the case with a manager if two breaches of a notice were witnessed. It expects a review after each breach which they now do with a manager;
• it is updating its instructions for dealing with noise complaints;
• it had a longstanding night enforcement service; and
• it now invoices perpetrators who breach a notice.

Analysis

37. Councils can decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation. Councils should have a policy or procedure to explain what it will do.
38. I found fault on this complaint for the following reasons:
1. In 2020, there is little information about what, if anything, was happening between August to December.
2. There is nothing to show what the Council did when it received Ms J’s acoustic report, how it considered this evidence, and how it considered its conclusions.
3. In January 2021, the Council received a complaint from Ms J which it resolved. It failed to provide a copy of this complaint or evidence showing how it resolved it.
4. In May, it wrote to the neighbour and installed noise monitoring equipment in Ms J’s house. There is no evidence to show, or explain, what prompted it to do this.
5. In October, officers witnessed two breaches of the abatement notice. The Council explained only when a third breach is found would it make a warrant application to the magistrates’ court. The third breach would need witnessing by an officer or by noise monitoring equipment before acting on it. The Council said it changed this requirement but did not say when. Officers now have a review of the case after each breach with a manager.
6. If the change came after the two breaches happened, I consider the Council fettered its discretion at the time of the two breaches. This is because it failed to show it considered whether each separate breach justified taking enforcement action at court.
7. If the change came before the two breaches, there is no evidence showing what the Council considered when it decided to issue the neighbours with invoices rather than issuing action at court for the breach of the notice.
39. I am satisfied the identified fault caused Ms J an injustice. The injustice caused Ms J is the distress of not knowing whether it was taking any action. She also has the uncertainty, and possible lost opportunity, of not knowing whether the outcome might have differed had the fault not occurred.

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Agreed action

40. I considered our guidance on remedies. I also considered the national and regional Covid-19 restrictions in place between March 2020 to July 2021.
41. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Ms J a written apology for its failings to: provide evidence of what was happening between August-December 2020 on her noise reports; show if and how it considered the acoustic report she privately paid for; provide evidence of the complaint she made in January 2021 and how it resolved it as claimed; show what prompted it to write to the neighbours and install noise monitoring equipment in her house; show whether officers reviewed the case after each of the two breaches of the abatement notice; show evidence of its decision not to take court proceedings.
2. Pay Ms J £100 for the injustice the identified fault caused her.
3. Take steps to ensure it knows why there are gaps in the evidence it provided in support of its response to our enquiries.
4. Ensure officers are reminded of the need to have a proper record of their consideration of, and their decision on, evidence provided privately by a complainant, such as an acoustic report.
5. Ensure officers are reminded of the need to have clear records of reviews, and decisions taken on those reviews, after witnessing, or having monitoring equipment evidence, a breach of an abatement notice.
6. Give officers clear updated guidance about the noise procedure it expects them to follow, especially following breaches of abatement notices.

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Final decision

42. I found fault on Ms J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman