Summary: We found no fault in the way the Council handled Mr X’s reports of disturbances from the bordering property, let out through an Airbnb scheme.

The complaint

1. Mr X says the Council failed to protect him and his family from regular disturbances from the bordering property (Property A) which is let out through an Airbnb scheme. He says the levels of noise at different times of day and night as well as inconsiderate behaviour of often large groups of people affected his and his wife’s quality of life, deprived them of sleep and caused health problems.

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What I have and have not investigated

2. I have not investigated how the Council addressed Mr X’s concerns in 2020 as this happened more than 12 months before Mr X complained to us. I cannot see any good reasons to exercise our discretion and review the events of 2020.

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The Ombudsman’s role and powers

3. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
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)
5. 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)

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How I considered this complaint

6. I spoke with Mr X and considered the information he provided.
7. I made enquiries with the Council and considered the information it provided.
8. I reviewed the Council’s Domestic Noise Complaints Procedure and Warwickshire Community Trigger Process.
9. 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

Legal and administrative framework

Statutory noise nuisance

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances.
11. For a council to consider something a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
• injure health or be likely to injure health.
12. Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
13. 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.
14. 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.

Anti-social behaviour

15. Councils have general duty to take action to combat anti-social behaviour (ASB). (Crime and Disorder Act 1998 Section 17)
16. ASB can take many different forms and councils should make informed decisions about which of their powers is most appropriate for any given situation. They may approach a complaint as:
• an environmental health issue, where the complaint is about noise or pollution;
• a planning matter, where the complaint is about an inappropriate use of a building or facility;
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.
17. Community Trigger process allows for a review of the case where a locally determined threshold is met. It is a means of giving victims and communities a say in how ASB is addressed. It is intended as a safety net for those who believe they have not had a satisfactory response to their complaints about ASB. (Antisocial Behaviour, Crime and Policing Act 2014, Sections 104 and 105).

What happened

Background

18. Mr X started complaining about disturbances from the bordering property in 2020. In June 2020 the Council opened an enforcement case as Mr X claimed the property next door was let out through an Airbnb scheme without a planning permission.
19. The Enforcement Officer contacted both Mr X and the letting agent of the bordering property (Mr Y) and discussed the use of Mr Y’s property. Mr Y told the Enforcement Officer of the measures applied to ensure control over the noise levels produced by the guests, such as:
• Excluding certain groups of potential guests;
• Installing cameras and noise sensors to monitor activity;
• Placing the house rules in the prominent places in the property;
20. The Enforcement Officer advised Mr Y to apply for planning permission but when it did not happen within 28 days passed it to the Senior Enforcement Officer for consideration.
21. Following review of the case law about properties let out through the Airbnb scheme and considering individual circumstances of the case, the Senior Enforcement Officer decided there was no breach of planning control and closed the case at the end of November 2020.
22. In August 2020 the Environmental Health and Protection Officer (the Officer) considered a log sheet provided by Mr X and decided there was no statutory noise nuisance.
23. Following further complaints from Mr X the Officer served the owners of Property A with the Community Protection Warning letters.
24. Mr X continued sending complaints and log sheets throughout September 2020. In response to these Mr Y explained how the impact of short-term lettings on the neighbouring properties was mitigated by the measures listed under paragraph 19 of this decision.
25. In September 2020 Mr X also submitted a community trigger but it was rejected at the end of October as not meeting a threshold for the review.
26. At the end of September the Officer installed a noise recording equipment in Mr X’s property for a month. No recordings were made. The Council decided there was no statutory noise nuisance from Property A and closed the case. Before doing so the Officer asked Mr Y to continue monitoring the noise from Property A and comply with the Community Protection Warning.

Mr X’s complaints from September 2021

27. Mr X told me that at the end of 2020 the owners of Property A stopped letting it out through the Airbnb scheme for about six months as they tried to sell it. According to Mr X Property A appeared again on the Airbnb platform in the summer of 2021.
28. From September 2021 till September 2022 Mr X logged at least ten complaints about the noise and behaviour of people who stayed in Property A. Mr X tried to take recordings on his mobile phone using a suitable application but he claimed it proved difficult.
29. In the beginning of October 2021 the Council opened another case to allow Mr X and his wife sending noise application recordings. Between September and December 2021 Mr X filed three noise complaints, supported by the evidence of the noise recordings.
30. In December 2021 the Officer told Mr X the noise from Property A recorded and submitted by him did not exceed the acceptable levels. There was no music, only the sound of voices. The Officer explained these were possibly more audible due to the poor sound insulation between the properties. The Officer could not see any reason to take further action.
31. In January 2022 Mr X sent three further noise complaints, which resulted in the Council’s correspondence in February advising its position remained as before.
32. Following another report of noise from Mr X in the end of July with the records of loud music at night, the Council wrote to Mr Y to remind him of the need to comply with the terms of the Community Protection Warning letter. This happened again in the end of August and the Officer again wrote to Mr Y.
33. In mid-August 2022 Mr X formally complained about the Council’s non-effectiveness in addressing his reports of disturbances. Not satisfied with the Council’s response Mr X escalated his complaint to stage two.
34. Responding to Mr X’s stage two complaint the Council upheld its stage one response and said:
• Mr X’s reports of disturbances were treated with the utmost seriousness and with the expected levels of analysis and objectivity;
• The Council has no legal powers to enforce quiet hours at night;
• Although the Community Protection Warning letter was served on the owners of Property A as part of the investigation into Mr X’s complaints, it has no legal standing;
• The Council did not get evidence of statutory noise nuisance so there are no reasons to take further action.
35. At the end of August Mr X filed a community trigger. The Council rejected it as not meeting the threshold for the review. Mr X appealed against the Council’s decision to the Office of the Police and Crime Commissioner (OPCC) and the appeal is still being considered.

Analysis

36. When addressing Mr X’s concerns about the noise from Property A the Council explored it first in 2020 in line with the planning enforcement legislation. In 2020 and from September 2021 considered it also from the angle of a potential statutory noise nuisance and ABS. This is a correct approach, as explained under paragraph 16 of this decision.
37. I did not look at the Council’s process when considering planning enforcement for the reasons explained in paragraph two.

Statutory noise nuisance

38. The evidence shows when dealing with Mr X’s noise reports the Council followed the legislation and its Domestic Noise Complaints Procedure. In particular it:
• Logged and reviewed all Mr X’s noise reports;
• Advised Mr X on the methods of gathering and sending evidence;
• Communicated regularly with Mr X and Mr Y;
• Reviewed the evidence, applying its professional judgement;
• Contacted Mr Y, when loud music was recorded at night on two occasions, to remind him of the need to comply with the Community Protection Warning and suggested visiting Property A to check the measures put in place to mitigate the impact of noise on Mr X’s property;
• Advised Mr X on the alternative ways of dealing with the disturbances from Property A through the private court proceedings.
39. When assessing evidence sent by Mr X the Council’s officers exercised their professional judgement in deciding the noise did not amount to the statutory noise nuisance. We cannot criticise the Council for its decision if, as we found, it followed the right process when reaching it.

Anti-social behaviour

40. Mr X appealed the Council’s decision of rejecting his community trigger and the appeal is currently considered by the OPCC. As there is a body better placed to look at this aspect of Mr X’s complaint, and is currently doing so, it would not be appropriate for us to make any decisions on the Council’s ABS process.

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Final decision

41. I found no fault in the way the Council considered Mr X’s reports of the disturbances from the bordering property.

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Investigator's decision on behalf of the Ombudsman