Summary: Mr X complained that the Council has failed to address noise from a neighbouring house for over ten years. He says this has caused him and his family and surrounding neighbours injustice in the form of distress. The Council is not at fault. It has investigated Mr X’s complaints and decided on the evidence that any noise does not amount to a statutory nuisance.

The complaint

1. Mr X complained that the Council failed to properly investigate the noise emanating from his neighbours’ dogs.
2. Mr X says this has caused him, his family and people in neighbouring properties injustice. He says the dogs bark constantly which is distressing and has had an impact on his son’s schoolwork.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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

6. I spoke with Mr X.
7. I made enquiries with the Council and reviewed its files.
8. I researched the relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. Mr X did not comment and the Council has accepted my decision.

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What I found

Relevant law

Statutory nuisance

10. Councils must take steps as are ‘reasonably practicable’ to investigate a complaint and has no statutory duty to take legal action unless it is satisfied that a statutory nuisance exists. For a noise to count as a statutory nuisance it must do one of the following:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises, or
• injure health or be likely to injure health.

11. Dog barking can be a statutory nuisance
12. If the Council agrees that a statutory nuisance is happening, it must serve an abatement notice. This notice would require whoever is responsible for the noise or activity to stop that activity or limit it to avoid causing a nuisance.
13. Those served with an abatement notice can appeal to a magistrates court. The Grounds for appeal include being able to show that legal tests have not been met to show that the issue is a statutory nuisance.
14. It is not always possible for a councils Environmental Health team to establish the existence of a statutory nuisance. This may be because the nuisance occurs only occasionally, and it is not possible for council officers to witness the nuisance. In other cases, the officer may feel the matter could not be classed as a statutory nuisance. In this situation, people can take independent action by complaining directly to the magistrates’ court under section 82 of the Environmental Protection Act 1990.

Background

15. The records show that Mr X has been complaining about dog barking from a nearby house for some years. He says he has been experiencing the noise for over ten years and the Council has failed to act.
16. The records show he raised the matter with the Council in 2017. He did so again in 2018. I have not investigated the Council’s response to these complaints as they occurred too long ago and I do not consider there is any good reason why Mr X could not have come to the Ombudsman if he was dissatisfied with the Council’s responses to his complaints at that point.
17. I have looked at complaints Mr X made to the Council in 2019. The evidence showed he complained about dog noise on two occasions and noise monitoring equipment was installed in Mr X’s house in November 2019.
18. The officer reviewing the evidence from the noise monitoring equipment said that she did not consider the evidence was strong enough to say that the barking amounted to a statutory nuisance. However, she felt there was enough to warrant further investigation. She suggested that officers should visit Mr X’s property and use their own ears to judge the barking and how it impacted on the enjoyment of the family home. It was suggested that three visits should be made. It was hoped that after those visits officers could decide to either serve a statutory notice or close the case.
19. An officer contacted Mr X to arrange visits to his property. Mr X said one of the people living in the house where the dogs had close links to the Council so he did not believe the Council would do anything.
20. Later, Mr X’s wife, Mrs X, cancelled the arranged visits to their house. She suspected the dogs had been taken somewhere else. She felt it would therefore be a pointless exercise.
21. In the new year, Mr X complained that the dog noise had started again.
22. Around this time, Mr and Mrs X were also concerned that the Council picked out anomalies in statements provided by them. The Council said that it appeared these differences could make possible future court prosecutions difficult. Mr X said the Council had focused on ‘meaningless differences’ in their statements rather than actually dealing with the noise.
23. The Council again arranged home visits to listen to the noise. On one visit in early January 2020, the officer said they did not consider the dog noise to be a problem. Shortly after that visit, prior to another arranged visit, Mr X asked that the case be closed again.
24. Mr X again contacted the Council in July 2020. He said the noise was worse than ever and he and Mrs X had again been keeping noise diaries. However, he said he feared his complaint would not be dealt with properly because of his neighbour’s close connections to the Council.
25. On 5 August 2020 Mr X asked the Council to install noise monitoring equipment again. He was told that, because of COVID and resource issues, this could be difficult.
26. Another investigator, Officer P, was appointed to look at the case. He started collecting evidence from other neighbours as well. On 1 September 2020, Officer P emailed Mr X and said he had officers in the area who would visit if the dogs were barking. Mr P was not able to reply to that offer until later as he had been working.
27. Officer P also told Mr X that, by law, he had to inform his neighbours if he was using monitoring equipment. He said he thought it more sensible to collate the evidence from supporting neighbours in the meantime.
28. On 18 September 2020, Mr X wrote to the chief executive of the Council. He said he was not seeing any ‘ownership’ from the Council and that all his complaints had ended in no action.
29. On 28 September 2020, Officer P had a phone conversation with Mr X. His notes show he told Mr X he was having problems with the evidence so far obtained. He said that, for instance, only one other neighbour had made recent contact and that it was difficult to ascertain if it was always the same dogs making the noise.
30. Officers made visits to the nearby area. I have set out a brief summary of the visits below.

First visit

31. The officer recorded a maximum of nine barks in a 55-minute period. Each bark was of a short duration and none were continuous or persistent.

Second visit

32. Officer recorded one bark in a 75-minute period.

Third visit

33. Officer recorded 61 barks in a 33-minute period. The observation was taken between 6.50am and 7.30am and it was noted that the barks woke people up. The Council said it did not consider these barks amounted to a nuisance. It said that, if each bark were considered to be two seconds in duration, this would cover two minutes of barking during the 33-minute period. It said this demonstrated that the barking was not continuous or persistent in nature.

Fourth visit

34. Officer recorded barks but not from the property concerned.

The view that the noise was not a statutory nuisance

35. Officer P completed his review of the case and in November 2020 concluded that, while the noise emanating from Mr X’s neighbour’s house could constitute an annoyance, it did not meet the threshold to be considered a statutory nuisance.
36. Mr X was unhappy with this conclusion. He made a number of observations about the Council’s decision. These were mostly of a technical nature, such as the Council making an error when it initially said the number of barks were 60 instead of 61 during one period of analysis.
37. I do not consider it proportionate to analyse each and every one of Mr X’s queries as they do not go to the heart of the issues he raised, which were more fundamental. He questioned how reliable the Council’s assessment was. During the period, Mr X had also said that he felt the Council had not properly applied itself to its investigations because his neighbour worked for the Council.
38. I have commented on the main concerns Mr X raised below:

• He considered the Council had failed to analyse all the diary entries provided by him and his neighbours. He said that, if this had been done, the outcome could have been different.

39. The Council says it had decided only to use those entries that corroborated each other and showed the noise came from the relevant property.
40. The Council had concerns about the reliability of uncorroborated evidence. It also considered it more probative to use this data to determine what times to visit to personally witness barking incidents as reported.
41. Mr X asked why it was necessary for several witnesses evidence to align. Officer P said that while where there were a number of complainants, all the material must be considered together. He said that if he were to ignore evidence which contradicted Mr X’s evidence, at appeal, it could be argued that the Council had reached a decision which was not supported by all the evidence.

• Mr X was also concerned that the Council did not consider 61 barks in a 33-minute period to represent a statutory nuisance.

42. The Council said that the barking was not evenly distributed. There had been 21 barks in 60 seconds between 07.17 and 07.18. It did not consider this represented a statutory nuisance.

• Mr X had concerns that the Council described the 33-minute period when 61 barks had been heard as containing a total of two minutes barking. He said this did not recognize the impact that the barking had on him and his neighbours as it was spread out throughout the 33-minute period.

43. The Council said that condensing the barks was an attempt to demonstrate that the barking had not been persistent over the 33 minutes. It accepts this was not a good way of explaining its reasoning to Mr X.

• Mr X was concerned that officer observations were taken from addresses where the complainants do not reside.

44. The Council said that this was not the case. It says that observations were carried out at reasonable representative points, taking the property complained about as the epicentre.
45. Mr X was also informed of his right to issue proceedings privately under section 82 of the Environment Act 1990. He said he did not wish to do this as he felt the Council had the necessary expertise.

Analysis

46. Councils have to take steps that are reasonably practicable to investigate reports of noise nuisance. The Council did so.
47. There does not appear to be any dispute that Mr X’s neighbours’ dogs bark and that this can cause an annoyance. Mr X is not the only neighbour who has complained, and the Council accepted that there was enough evidence from noise monitoring to warrant a deeper investigation. The Council went on to accept that there was evidence of dog barking from the relevant property. However, the Council did not determine that the level and persistence of dog barking reached the threshold whereby it would consider it to be a statutory nuisance.
48. Mr X says the Council did not use all the evidence it had gathered. The Council provided a good reason for this. If it was going to issue a statutory nuisance notice, it might have to justify its stance if appealed in the magistrates court. If the evidence was contradictory, this might have resulted in a successful appeal.
49. Mr X did not agree with the approach the Council took. But this was matter of professional judgment. The Ombudsman does not generally find fault with a council when officers exercise their professional judgment in a reasonable fashion, and I do not consider that the Council’s approach was unreasonable in this case. It explained why it considered it needed to corroborate Mr X’s evidence and it conducted visits to areas around the alleged noise source.
50. Prior to the last complaint Mr X made and during the investigation that started after Mr X’s complaint in July 2020, the Council offered to visit Mr X’s property to witness the noise first-hand. There is always a difficulty with obtaining evidence to support a case of statutory nuisance because the noise may not be happening when officers visit.
51. The Council did not consider the evidence showed there was a statutory nuisance. It set out its reasoning in detail. It was not therefore at fault.
52. The Council accepts that its description of 61 barks over a 33-minute period as amounting to less than two minutes concentrated noise was not helpful. But that does not mean that it was wrong to say that the barking itself did not, in its professional view, amount to a noise nuisance.
53. I have not found any evidence of bias because Mr X’s neighbour had links to the Council. The records show, as referred to in my para 16, that if the Council had detected a statutory nuisance, it was prepared to issue a notice.
54. Mr X told the Council’s chief executive that his complaints resulted in no action, but the records do not support that claim. The Council was asked to suspend its investigations twice. This was because Mr X and his family did not want to waste the Council’s resources during periods when the noise had reduced. Nonetheless, the Council cannot be at fault for suspending its investigation when asked. When Mr X complained that the noise had started again, the Council started investigating again and the Council carried out a thorough investigation of Mr X’s concerns.
55. Since coming to the Ombudsman with this complaint, Mr X has complained again to the Council about noise. His concerns are being investigated. The findings of my investigation have no bearing on any new investigation. Mr X can raise concerns if he has concerns in future and there is no reason to believe the Council will not investigate them.
56. It is also relevant that when Mr X did raise his complaint with the Council again, it asked him why he had not chosen to take his own case to the magistrates court. He responded that he believed the Council was best placed to deal with the issues based on the way it had conducted the investigation in the past.
57. Therefore, I do not find fault with the way the Council has dealt with Mr X’s concerns.

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Final decision

58. I have not found the Council at fault. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman