Summary: C complains the Council failed to investigate properly and take appropriate action in response to their reports of nuisance. C says they suffered from unacceptable levels of nuisance for longer than necessary which has exacerbated an existing health condition and created repeated pest problems. The Ombudsman finds fault in the way the Council dealt with some of C’s reports but considers the agreed actions of an apology, £200 with a review of the current situation and some procedural improvements are enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as C, complains the Council has failed to investigate properly and take appropriate action in response to their reports about:

• their neighbours not securing their dog or ensuring it wears a collar in public
• noise from their neighbours' dog
• damage to the footway from their neighbour driving over the pavement
• diesel fumes and noise from their neighbours' van
• rubbish and trade waste being stored in their neighbours' garden

2. C says because of the Council's fault they have suffered from unacceptable levels of nuisance for longer than necessary which has exacerbated an existing health condition and created repeated pest problems.
3. C also complained about their neighbours building over the boundary line.

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What I have investigated

4. C complains the Council has failed to investigate properly and take appropriate action in response to their reports about:

• their neighbours not securing their dog or ensuring it wears a collar in public
• noise from their neighbours' dog
• damage to the footway from their neighbour driving over the pavement
• diesel fumes and noise from their neighbours' van
• rubbish and trade waste being stored in their neighbours' garden

5. C says because of the Council's fault they have suffered from unacceptable levels of nuisance for longer than necessary which has exacerbated an existing health condition and created repeated pest problems.
6. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

7. 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)
8. 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)
9. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
10. 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

11. I read the papers provided by C and discussed the complaint with them. I have considered some information from the Council and provided a copy of this to C. I have explained my draft decision to C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

12. The Environmental Protection Act 1990 provides that Local Authorities must take such steps as are reasonably practicable to investigate where a complaint of a statutory nuisance is made. For a noise to count as a 'statutory nuisance' it must:

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

13. Generally, the statutory nuisance will need to be witnessed by a suitably qualified officer and they will come to an independent judgement. The process of deciding what level of noise constitutes a nuisance can be subjective. The level of noise, its length, timing and location may be considered in deciding whether a nuisance has occurred. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
14. It is open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.
15. Councils can decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance.
16. Councils have separate powers to deal with anti-social noise. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour as:
1. conduct that has caused, or is likely to cause, harassment, alarm or distress to any person
2. conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or
3. conduct capable of causing housing related nuisance or annoyance to any person.
17. Section 17 of the Crime and Disorder Act 1998 places a general duty on councils to take action to combat anti-social behaviour. Examples of possible anti-social behaviour would include:

• graffiti, vandalism and damage to property
• verbal and physical threats and abuse and harassment
• animals not being kept under control
• nuisance, rowdy or inconsiderate neighbours
• littering, fly tipping, dumping or abandoned vehicles
• street-level drug dealing or drug use

Key events

18. The Council has provided a chronology of its actions from July 2018 and says it has no records of reports from C before this date. C contacted the Council in July about noise from dogs howling and barking at their neighbours’ property and that the neighbours were driving over the kerb to access their property. The Council notified Highways about the pavement issue and sent diary sheets to C for them to complete over a two week period to show how frequently they were being affected by noise. The Council provided the contact details for its reactive noise service and guidance about C’s own private right of action under section 82 of the Environmental Protection Act. The Council’s letter says it will close the case if no diary sheets are returned within four weeks. The Council’s records show it closed the case on 24 August as it had not received any completed diary sheets from C.
19. C returned the diary sheets to the Council at the end of August. These contained various incidents of noise between 24 July and 20 August. C explained their neighbours went away between 21 and 24 August with the dogs so there was no noise during that period. There were two instances of the house alarm going off one of which went on for several hours. There were various reports of banging and doors slamming and one brief instance of music being played loudly. There were also various reports of dogs howling and barking mostly for between 5 and 30 minutes but on one occasion for several hours. C also included some additional information included details of completed soundproofing works.
20. The Council telephoned C in early September to explain the diary sheets showed a pattern of infrequent and brief noise which it did not propose to investigate further. The Council says C confirmed there had been no further noise from the previous impact noises or the dogs barking. The Council confirmed it would close the case but C could complete a new diary if the matter deteriorated. C says this was not made clear.
21. C emailed their MP at the end of November about noise from their neighbour’s dogs barking and howling. C was particularly concerned about the impact on their own dog which was recovering from serious surgery but also mentioned the impact on their own health. C’s MP passed the matter to the Council and explained they had also been reporting issues of continuous building work at their neighbour’s property. The Council sent C a noise diary pack at the beginning of December.
22. C emailed the Council on receiving the diary pack as they were unhappy at being asked to complete more diary sheets. C wanted to know what action the Council had taken in response to their previous diary sheets which recorded the barking and howling and their evidence of £2,000 of soundproofing works they had arranged because of the noise. C set out the impact on their health over the previous year from the noise. C says the howling was now more intermittent but felt it should have been dealt with properly when they originally reported the issue. C referred to a telephone report they had made about late night building noise which they say the Council dismissed and contact with the police about a malicious communication from their neighbour. C explained they had noise recordings on their phone.
23. The Council acknowledged C’s email and confirmed it was treating the matter as a formal complaint. C made clear they were not making a complaint but seeking an update on what action the Council had taken in response to their earlier reports of nuisance and the neighbour damaging the kerb and if anyone was going to listen to their noise recordings. The Council responded at the first stage of its complaint procedure the same day. The Council’s complaint response confirmed C would need to complete further diary sheets before it took any action.
24. C contacted the Council in December about diesel fumes from their neighbour’s vehicle which they said was now being parked to deliberately cause them nuisance. C provided recordings of dogs howling which they stated still occurred although less frequently.
25. The Council contacted C in December to explain a further diary would be needed to show how frequently the diesel fumes were affecting them and that the recordings could not be accessed as it was not compatible with the Councils systems. The Council also explained it would not rely on a complainant’s recordings as evidence when taking formal action. The Council confirmed it would await C’s completed diary records for both the diesel fumes and dog noise.
26. C contacted the Council to say they were unwell and could not hold a pen to complete more diary records. C asked the Council to contact their neighbour about parking with more consideration and if someone could visit to listen to their recordings. The Council responded with an electronic version of the diary records so C could type directly onto these rather than using a pen and some simplified records for completion.
27. C provided completed diary sheets to the Council in early January 2019 and said the situation had been generally better but that day had been particularly bad. The Council contacted C in mid-January to say it had reviewed their diary record and suggested a visit date to discuss the matter.
28. The Council visited C and another neighbour was also present at this meeting. C told the Council about the impact the noise from their neighbours’ dogs was having on their own dog. C wanted to know why their reports were not being treated as anti-social behaviour. The Council explained it considered the statutory nuisance regime was the most appropriate avenue to deal with noise issues. C said their previous reports had not been pursued. The Council reminded C that they had told the case officer the noise had improved and it was agreed to close the complaint. C said this had not been made clear to them at the time. C played recordings of banging noise and dog howling to show the type of noise they had experienced. The Council explained that statutory noise nuisance was based on frequency, duration, level and type of noise and what would be unreasonable. The Council says both C and the neighbour present confirmed the noise had improved. C told the Council their neighbour would park his van with the exhaust facing their property and leave the engine running for 15 minutes. The Council explained this could be investigated as a statutory nuisance and C would need to record a diary. C explained that although the incidents of dog noise were infrequent, they were worried it may get worse again. C’s neighbour confirmed they were also affected by the dog noise during the day. The officers explained that statutory nuisance is about how a person is being affected within their home and so when C was at work they could not be affected. C’s neighbour agreed to keep their own diary record. C agreed to keep a simplified diary as they found it difficult to write. Both C and their neighbour advised the Council that the dogs often ran into the street and into C’s front garden. The Council agreed to refer this to the community wardens. The Council advised it would take no further action until completed diary sheets were received.
29. Following the visit, the Council sent C further diary records to be completed about the diesel fumes and/or dog noise. The Council also raised a new case for C’s neighbour and passed details of the dog straying to the community wardens.
30. C contacted the Council in February and repeated their concerns about their neighbour driving across the pavement to access their property. C also explained they had not returned the diary as they had only made one entry about dog noise which had improved. C said the main issue was the diesel fumes from the neighbour’s van being parked next to their boundary which also blocked light to their property and noise from slamming of the vehicle doors. Due to the frequent coming and goings they found it difficult to record using the diary record. C reported excess dog mess and rubbish in the rear of their neighbour’s garden and the fact the garden was open which allowed the dog to roam freely.
31. The Council contacted C at the end of February to confirm they needed to keep a record of when the van was being left running outside for the Council to consider if it constituted a nuisance. The Council confirmed it would pass their reports of dog straying and waste issues to the relevant team.
32. C reported damage to the kerb from their neighbour driving across the pavement to access their property. The Council confirmed it had visited their neighbour and did not propose any further action about his access as it considered there was enough space to manoeuvre without needing to cross the pavement. The Council would inspect the pavement for safety defects and if any were identified these would be repaired. C responded to dispute there was enough space and to ask why their neighbour had not been required to complete an extended vehicle crossing to the front of the property.
33. C complained to the Council in March about its response to their reports about use of and damage to the pavement by their neighbour and asking why other residents had been required to install an extension to existing dropped kerbs but their neighbour was not being asked to do so. C was also unhappy at the response to their reports about the neighbour dogs not being secured at the property, noise from barking and howling, rubbish in the garden and diesel fumes and noise from the parking of vehicles close to their property.
34. The Council’s Dog Warden visited the neighbour’s property in early March and noted there was no back gate at the property. There was no one at the property and the officer left a calling card.
35. The Council responded at Stage 1 of its complaint procedure on 25 March to say there was a vehicle crossing already in place and it would not take further action under the relevant legislation. The Council accepted an extension to the existing vehicle crossing would help their neighbour manoeuvre but it could not compel this. The Council confirmed it did not have the resources to erect bollards or to extend the crossing itself and recharge the costs. The Council also advised the level of dog noise C had highlighted was not likely to be considered a statutory nuisance but they would need to complete further diary records. The Council confirmed these were also needed for their reports about diesel fumes. The Council confirmed it had received a report from another neighbour about rubbish being left in the neighbour’s garden and this was due to be removed.
36. C responded the same day to say the Council had not dealt with their concern about the dogs not being secured at the neighbour’s property. C also reported two recent occasions when they had seen one of the dogs without a lead or collar outside the property. The Council apologised for not responding to the dog security issue. The Council’s Stage 2 response in April confirmed it had inspected the pavement and did not identify any safety defects that required repair and it proposed no further action on this issue.
37. The Council closed the case in early June as C had not returned any further diary records.
38. C reported damage to the kerb from their neighbour driving over it in mid-June. The Council raised an order raised for repair works which were completed in July. C reported their neighbour was driving over the kerb with no drop kerb again in July.
39. C contacted the Council in early August to say after three months of peace and quiet matters had deteriorated again. C provided details of an incident where their neighbour shouted at them and that his van had been parked deliberately next to their boundary to block light to their property. C also advised there was a reoccurrence of the rat problem which they considered was due to rubbish in their neighbour’s garden. C considered the rubbish was commercial waste that was regularly emptied from their neighbour’s van. C also said food waste was being stored in black bags which would get ripped open during the night by foxes or cats and they had found food waste strewn across their own garden from this activity. C also stated the recent pavement repair was failing again.
40. The Council offered to visit C but they were not available. The Council sent C pest control records for them to complete and confirmed it would write to nearby residents about the issue. C complained about having to complete records when they had notified the Council about the problem and provided photographs.
41. The Council wrote to several residents including C’s neighbour with advice about how to prevent a rodent infestation. A different resident contacted the Council to confirm they had arranged a pest control company to visit their garden due to evidence of rats in their garden.
42. The Council contacted C at the end of August to confirm it had visited the neighbour’s property and found no dog mess and no decaying matter or food type waste. The Council did find some stored items in one corner. C disputed there was no evidence of waste and provided a photograph. C also criticised the content of the advisory letter the Council had sent to residents as being unclear. The Council advised C it could not use their photographs as evidence as they were not dated stamped.

My consideration

43. Based on the evidence provided, it appears C was experiencing issues with their next door neighbours for some time before reporting these to the Council. The Ombudsman cannot investigate the actions of C’s neighbours only how the Council responded to reports. I see no fault in the Council’s initial response. The Council sent C diary sheets to complete and provided information about how to contact its noise service and how to take their own action.
44. On reviewing the completed diary records the Council took the view the noise was unlikely to constitute a statutory nuisance and advised C it would take no further action. C says this was not made clear to them at the time. Although the Council has provided a record of its telephone contact it did not send a closure letter to C to confirm it did not propose any further action and provide its reasons for this decision. I consider the Council’s failure to provide its reasons and put this in writing to C constitutes fault. In considering the injustice caused to C I have noted they reported the noise had improved but was still occurring albeit less frequently. There is also no evidence of the Council’s consideration to taking informal action including writing to the person causing the nuisance.
45. In its response to the Ombudsman, the Council confirmed C had made no contact with its Anti-Social Behaviour Team and did not consider any of the issues raised fell within their remit. The Council also advised it was not aware the issues had been raised with the police. However, C advised the Council in December 2018 that they had contacted the police about a malicious communication from their neighbour. It is also clear that some of C’s reports to the Council would fall with the definition of anti-social behaviour set out in Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014. It is not clear how the Council has discharged its duty under section 17 of the Crime and Disorder Act 1998. Given the range of issues being reported by C, I consider the Council should have referred C’s reports to its Anti-Social Behaviour Team for consideration and its failure to do so constitutes fault. Such a referral would have provided an opportunity for partnership working including liaison between Council services.
46. There is also no evidence of action in response to C’s reports (supported by another neighbour) about their neighbours’ dogs not being secured or under control and not wearing a collar in a public place from when they raised the issues in January 2019 until the Council’s visit to the neighbour in March. The neighbour was not at home when the Council visited and there is no recorded evidence of any follow up action by the Council. C had also raised welfare issues about the amount of time the dogs were being left alone and lack of exercise but there is no recorded evidence of contact with the owner about these issues.
47. I do not propose to investigate further the Council’s response to C’s reports about their neighbour needing an extension to the dropped kerb to avoid damage to the pavement. The Council has provided its reasons to C and this is a decision it is entitled to reach. The Council has inspected the pavement and made repairs as necessary. C’s concerns about the cost to the public purse are caught by the restriction outlined at paragraph 9 above as they are only affected as a council tax payer.

Agreed action

48. The Council will take the following actions to provide a suitable remedy to C:
1. write to C to apologise for the faults identified above and pay them £200 to acknowledge their distress and time and trouble within one month of my final decision;
2. contact C to confirm if they are continuing to experience issues of nuisance and/or ASB and, if so, consider partnership working as appropriate within one month of my final decision;
3. arrange a visit by its Dog Warden service to C’s neighbour when they are home to check the issues they have raised within two months of my final decision;
4. review its procedures to ensure a written outcome is provided to reports of statutory nuisance providing the Council’s reasons for any decision a statutory nuisance is unlikely to or does not exist;
5. review its procedures to ensure referrals are made to its ASB team when issues of possible ASB are raised; and
6. review its procedures to ensure consideration is given to informal action in cases where the Council does not propose formal action.
49. The Council should provide the outcome of its procedural review to the Ombudsman within three months of my final decision.

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Final decision

50. I have completed my investigation as I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.

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Parts of the complaint that I did not investigate

51. I have not investigated the part of C’s complaint about their neighbours building over the boundary line as this is a private matter between the parties. The Party Wall etc Act 1996 provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings. The Act is separate from obtaining planning permission or building regulations approval. C would need to seek their own independent advice on this issue.

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Investigator's decision on behalf of the Ombudsman