Bristol City Council (21 011 798)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 09 May 2022

The Ombudsman's final decision:

Summary: Ms X complains about the way the Council dealt with her complaints of noise nuisance from a neighbouring property causing distress. We found fault in the way the Council responded to Ms X’s complaints as it failed to send her case closed letters. But this did not cause Ms X a significant injustice. There is no evidence of fault by the Council in its noise nuisance investigation and in making a decision there was no ongoing statutory nuisance. So, we are completing our investigation.

The complaint

  1. I have called the complainant Ms X. She complains the Council failed to take action to deal with her complaints of noise nuisance from a neighbouring property caused by barking dogs and loud tv noise. Ms X says the Council failed to enforce a noise abatement notice it served. Ms X says the Council’s failure to act resulted in matters escalating with the neighbour causing distress and impacting on the well-being of herself and partner Mr Y.
  2. Ms X wants the Council to investigate the case, take urgent action and compensate her for the distress caused and her time and trouble in complaining.

Back to top

The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • any fault has not caused injustice to the person who complained, or
  • any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

  1. If we are satisfied with an organisation’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 read the documents submitted by Ms X and spoken to her about the complaint. I considered information from the Council and the supporting documents it provided.
  2. Ms X 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

Legislation

  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
    • insect infestations from industrial, trade or business premises
    • accumulation of deposits on 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, 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.
  5. 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.
  6. Councils can 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. 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.
  7. A member of the public can also 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. 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.

The Council’s noise policy

  1. The Council’s policy on noise nuisance complaints requires service users to download and complete diary sheets. The Council sends a ‘diary not returned‘ letter to the service user if it receives no information within 42 days. If the diary sheets are returned an officer will consider the information and contact the service user within 15 days with an outcome. If the possible problem may be a nuisance the Council issues a warning letter to the alleged perpetrator. The Council tells the service user and advises them to contact the Council within two weeks if there is still an issue. If no further contact the Council assumes the case is resolved, takes no more action, and closes the case.
  2. If the service user reports an issue within the two weeks the Council decides the best way to gather evidence through the Council’s noise app, noise monitoring equipment or planned visits. The Council offers the noise app to service user who have live cases under investigation affected by noise such as dog barking, loud music, and DIY/construction noise. A noise app allows users to record noise and create noise reports.
  3. The case officer reviews the case after four weeks. If the recordings do not show a nuisance the case is closed and service user informed. If there is a nuisance confirmed the Council will issue an Abatement Notice. If the notice is breached the Council decide what action to take.

What happened

  1. This section sets out the key events in this case and is not intended to be a detailed chronology
  2. In March 2019 Mr Y complained to the Council about noise from their neighbour’s barking dogs. The Council sent Mr Y diary sheets to fill in. It closed the case in April 2019 as Mr Y did not return any diary sheets. The Council accepts it did not send Mr Y a letter advising it had closed the case.
  3. Ms X returned the diary sheets in September 2019 about early morning dog barking. The Council reopened the case and sent a warning letter to the neighbour about the complaints. The neighbour denied causing a noise nuisance.
  4. The Council recorded no further reports from Ms X and Mr Y until January 2020. Mr Y raised complaints about noise from the neighbour’s barking dogs. An Environmental Protection (EP) officer explained about a team working at the weekend and how to contact it if needed to witness the nuisance. The officer later installed noise monitoring equipment at Ms X and Mr Y’s property. The officer returned to collect the equipment. Mr Y advised he made some recordings but was unsure what it recorded as the kit stopped working.
  5. The officer reviewed the recordings in February 2020 and did not consider it evidence of a statutory noise nuisance. The officer arranged to reinstall the equipment, but Ms X cancelled it.
  6. Mr Y reported further issues with dogs barking in March 2020 and registered to use the Council’s noise app. The officer reviewed the recordings made at the end of March 2020. The Council served two noise abatement notices (notice) on the neighbour in April 2020 for dogs barking and loud TV/radio noise. The notices said the Council was satisfied a statutory nuisance existed, was likely to reoccur and asked the neighbour to abate the nuisance.
  7. Mr Y reported a ‘significant change in the noise levels’ since the Council sent the notice. The Council reviewed the case at the end of April 2020 including the noise app recordings made by Ms X and Mr Y. The case officer and senior manager considered there was not enough evidence of a statutory nuisance continuing.
  8. The case officer updated Ms X and Mr Y in May 2020. The officer noted the change in the neighbour’s behaviour. The officer asked Ms X and Mr Y to make recordings only from inside their house as most recordings were from outside the property. The officer advised the recordings needed to be with the windows open and closed and include their voices during any noise for comparison. The officer delivered noise monitoring equipment to Ms X and Mr Y and collected it a few weeks later.
  9. The officer reviewed 16 recordings made by Ms X and Mr Y but considered it not enough evidence of a continuing statutory nuisance. The officer advised Ms X and Mr Y of the review and explained why the Council considered the evidence insufficient to be a breach of the notice. The officer suggested they try mediation with their neighbour and advised they could take their own action against the neighbour under section 82 of the Environmental Protection Act 1990.
  10. Ms X complained to the Council in June 2020 it had not responded to her concerns it was failing to take any action against their neighbour. Ms X said the nuisance was persisting, left unmitigated and they were having to deal with it for longer than necessary. Ms X said the noise was disturbing them. The officer spoke to Ms X and explained why the Council would not take more action due to lack of evidence in the recordings. The officer explained the level of evidence needed and to show they had tried mediation.
  11. The Council formally responded to Ms X’s complaint at stage 1 of the complaint procedure in June 2020. The Council confirmed the EP officer told them the incidents captured on the noise monitoring equipment were not evidence of a statutory nuisance. The Council said although statutory nuisance was defined in law it can be difficult to define exactly. This was because it depended on frequency, time of day and volume. The Council understood the neighbour changed the times for letting the dogs out into the garden and they were pursuing mediation which may help to improve matters.
  12. Ms X responded the situation with their neighbour had worsened. Ms X complained:
    • They were issued with faulty noise recording equipment and told to use the noise app when they asked for new equipment.
    • The Council issued the neighbour with an abatement notice and they were told to record any further nuisances. Ms X said they had done so but told they were not sufficient.
    • They were given more noise monitoring equipment and told to do ‘early’ recordings but not told what that meant.
    • Ms X said they were told the 16 recordings made were not actionable but were not told why. And the EP officer turned the noise app off.
    • Ms X considered the guidance given was vague and kept changing.
  13. Ms X ask to escalate the complaint because the Council ignored their information. Ms X said the noise nuisance getting worse with the dogs barking early in the morning.
  14. Ms X submitted more recordings of noise from dogs barking and alleged the neighbour breached the notice. The EP officer reviewed the noise app recordings and advised there was insufficient evidence of a continuing statutory nuisance. The officer told Ms X the noise levels on the app were not sufficient to show on the balance of probabilities there was a noise nuisance. The officer said the noise monitoring equipment recordings also did not show a breach of the notice. The officer agreed to book the noise monitoring equipment again but there would be a wait due to many cases needing the equipment. The officer agreed to review the recordings further.
  15. The officer contacted the neighbour to advise the Council was still receiving complaints and it would act if there was a breach of the notice. The officer corresponded with the neighbour to try and improve the situation. The officer reviewed the recordings from Ms X and Mr Y. The officer told Ms X there was no breach of the notice following the review and turned off the app as they had sent in many recordings. But the Council had a night team who could come out to the property if Ms X and Mr Y were disturbed to witness the extent of what they alleged they were experiencing. Ms X agreed to the visit.
  16. The Council spent several weeks trying to arrange a visit which was booked for 13 September 2020. Ms X cancelled the visit due to ill health and complained the Council had not responded to her emails from June 2020 outlining her concerns about its response to the noise nuisance.
  17. The Council responded to Ms X’s stage 2 complaint in October 2020 and did not uphold the complaint. It considered the EP officer gave advice and guidance to Mrs X and Mr Y to capture the neighbour’s dogs barking. The EP officer listened to 34 recordings but concluded it was not a statutory nuisance. A senior manager agreed with the EP officer’s view. But to investigate the matter further agreed to send another officer to carry out more monitoring. Ms X cancelled as she was unwell and had not been in contact since. The Council said it would normally follow this up after six weeks so would carry out another visit if Ms X wanted this.
  18. The Council considered the action taken by the EP officer who placed a noise abatement notice on their neighbour. Ms X and Mr Y sent in further recordings, but these were not considered to be a statutory nuisance. The Council apologised for any issues with noise recording equipment. But they had been able to use the noise app to record the noise. The EP officer turned off the app because there were several recordings and did not consider they provided the evidence needed to show a breach of the notice. The officer wrote again to the neighbour to highlight further complaints and to try to reduce the noise.
  19. The Council noted Ms X and Mr Y were seeking mediation with the neighbour, but this did not lead to any improvement. The Council acknowledged the situation had been ongoing for some time. But it had been a busy time for the Neighbourhood Enforcement team coupled with the need to send someone to visit out of hours. The Council previously offered an officer at the earliest opportunity to visit in September 2020, but this was postponed, and Ms X had not been in contact since.
  20. The Council apologised for any delays and if communication was not clear what the next steps would be. But the Council did not have evidence to prove the noise was a statutory nuisance. The Council said it was still working with Ms X and Mr Y to investigate the noise complaint further and could turn the noise app on again if necessary. The Council asked Ms X to contact it to arrange for an officer monitoring visit.
  21. The Council reviewed the case in December 2020 as it had no further contact from Ms X and Mr Y. The Council accepts it did not send a letter advising it had closed the case. Ms X and Mr Y contacted the Council in 2021 for information as they intended to take their own legal action against their neighbour.

Analysis

  1. The Council provided documents to show it has responded to and investigated Ms X and Mr Y’s complaints of nuisance according to its procedures and practices. Officers installed noise monitoring equipment at their home and allowed access to its noise app to enable them to make recordings of the noise they were experiencing. The Council issued their neighbour with noise abatement notices and Ms X and Mr Y accepted a significant change in the noise levels afterwards.
  2. The documents show officers explained to Ms X and Mr Y about monitoring and offered advice. The Council acknowledge an issue with the noise monitoring equipment on one occasion, but there were recordings the officer could review. Ms X and Mr Y were offered access to the noise app which the Council uses for complaints about dog barking, so they have not been disadvantaged. Ms X and Mr Y have also carried out further recordings with noise monitoring equipment.
  3. The Council continued to review the noise recordings made by Ms X and Mr Y. But did not consider there was a continuing statutory nuisance based on the evidence officers witnessed.
  4. Ms X disagrees with the Council’s decision there is no evidence of an ongoing statutory nuisance, but the decision is a matter of the officers’ professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
  5. This is because officers considered the information and recordings made by Ms X and Mr Y and visited their property to investigate the alleged nuisance. This is according to the Council’s policy and practice and the requirements of the EPA to investigate. Officers did not consider there was evidence of a continuing statutory noise nuisance. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached these decisions from the documents I have seen.
  6. The Council accepts it did not send letters to Ms X and Mr Y in April 2019 and December 2021 to advise it had closed the cases. This is fault by the Council as its policy requires service users to be informed. But I do not consider it caused Ms X and Mr Y a significant injustice to pursue the matter further. This is because they did not report any further issues for some time after the Council closed the cases. And as soon as Ms X and Mr Y contacted the Council again, it reopened the cases to investigate the concerns further. So, I do not consider Ms X and Mr Y have been disadvantaged in any way by not receiving the case closed letters. But I would recommend the Council reminds officers of the need to follow its noise policy and issue case closed letters when appropriate.
  7. The evidence shows the Council advised Ms X and Mr Y about section 82 of the EPA which is good practice by the Council.

Back to top

Agreed action

  1. The Council should remind officers of the need to follow its noise policy and issue case closed letters when appropriate. The Council should provide evidence it has taken this action within one month of the date of my final decision.

Back to top

Final decision

  1. I am completing my investigation. The Council is at fault in the way it responded to Ms X’s complaints of noise nuisance as it failed to send her case closed letter. But this did not cause Ms X a significant injustice. There is no evidence of fault by the Council in its noise nuisance investigation and deciding there was no ongoing statutory nuisance.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

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.

Privacy settings