Summary: Mr X complained about the way the Council handled his complaint about his neighbour feeding birds in his garden. There was fault in the Council’s record keeping, communication and complaint handling. The Council agreed to apologise and pay Mr X £100 to recognise the frustration and uncertainty caused.

The complaint

1. Mr X complained about the way the Council handled his complaint about his neighbour feeding birds in his garden which he said caused his property to be covered in bird excrement. Mr X stated this caused him frustration and distress.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 read the documents provided by Mr X and discussed the complaint with him on the telephone.
7. I read the documents provided by the Council in response to my enquiries.
8. 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

Legislation

9. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance could be caused by a number of things and 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.
10. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets or undertake site visits to witness the nuisance.
11. Once the evidence-gathering process is complete, the environmental health officer will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.
12. If the officer decides there is a statutory nuisance they must serve an abatement notice on the person responsible. An abatement notice can require the person to stop the activity or limit it to certain times. An abatement notice is sometimes referred to as a nuisance prevention order or notice.

The Council’s policy

13. The Council’s policy states if it cannot substantiate a statutory nuisance after three or more site visits, at times it is likely to witness the nuisance, it will close the case. It states it will inform the complainant before it closes the case.

What happened

14. In 2019 Mr X lived next door to Mr G. Mr X had previously complained to the Council about Mr G excessively feeding birds in his garden. Mr X said this resulted in unreasonable amounts of bird faeces on his garden furniture and conservatory.
15. In May 2019 the Council wrote to Mr G about the bird feeding. The title of the letter was ‘Environmental Protection Act 1990. Statutory Nuisance Investigation – Faecal deposits’. It stated Mr G had previously agreed with the Council to only place bird feed in certain areas of his garden and it had received reports he was not sticking to the agreement. It said if it received any further reports within the next three months it would begin a statutory nuisance investigation.
16. In May Mr X contacted the Council again to complain Mr G was not sticking to the agreement made with the Council. The Council emailed Mr G and reminded him of the agreement.
17. Mr X continued to contact the Council and complain that Mr G was not keeping the agreement to only feed birds in certain areas of his garden. The Council said it asked Mr X to complete log sheets of the events so it could consider whether it needed to conduct monitoring visits. Mr X completed the log sheets in June and July and returned them to the Council at the beginning of August.
18. In July the Council said that an officer completed three site visits in one day and witnessed Mr G feeding the birds not in line with the agreement. He did not find any evidence of excessive bird excrement on Mr X’s property.
19. In August 2019 the Council states it told Mr X it would conduct monitoring visits in September. The Council took no further action and did not complete any monitoring visits.
20. Between December 2019 and January 2020 Mr X sent the Council three emails complaining about Mr G feeding the birds. The Council opened a new case and said it sent a warning letter to Mr G in January. Mr X complained again in February and the Council said it sent Mr G another warning email.
21. The Council says an Officer visited Mr G in March. It says the Officer did not see any evidence of excessive bird excrement. It says Mr G told the officer that he felt harassed by Mr X’s excessive watching of his garden.
22. The Council Officer wrote to Mr X. The letter said there had been a counter allegation of noise and perceived aggressive behaviour from Mr G. It stated there was no evidence of a statutory nuisance caused by the bird faeces. It stated the stress of the dispute on Mrs X and Mrs G was potentially grounds for issuing a prevention of nuisance notice on both households. The Council officer stated he did not want to take that course of action but would if he had to. It offered Mr X mediation with Mr G.
23. Mr X complained to the Council in March. He stated that:
• the Officer’s letter was inappropriate, had an inflammatory tone and accused him of putting a ‘spin’ on events;
• the Council had not taken any action about Mr G breaking the agreement despite him reporting it many times; and
• the Officer had unfairly threatened him with a prevention of nuisance notice for reporting the issues.
24. Mr X contacted the Council twice more in March and once in April reporting that Mr G continued to breach the bird feeding agreement.
25. The Council decided to close the complaint in July 2020.
26. In November 2020 Mr X contacted the Council several times to complain that Mr G was again not sticking to the agreement. The Council replied and stated it would write to Mr G and remind him of the agreement. Mr X asked the Council if it could not help him further, what the escalation process was within the Council.
27. Mr X states he then received a phone call and email from the Officer who told him bird feeding was ‘an acceptable part of a person’s enjoyment of their land’. Mr X states the Officer also told him that Mr G continued to keep a log of Mr X’s behaviour.
28. Mr X complained to the Council and stated he was unhappy with the Officer’s response to him. Mr X stated:
• the Council’s position on Mr G’s bird feeding had changed without explanation;
• the Officer’s communication was inappropriate and suggested that Mr X was ‘over-reacting’; and
• the Officer had previously suggested Mr X put a ‘spin’ on events.
29. The Council responded to Mr X in December. It stated that it apologised if the Officer had caused offence by his comments. It said it had spoken to Mr G who said he felt he had kept to the agreement most of the time. The Council said it could not confirm or deny this as it had not monitored the situation. It also said that it had made a referral for mediation so Mr X and Mr G could find a resolution to the problem.
30. Mr X responded to the Council in January and agreed to the mediation. Mr X asked for a response on all the points of complaint he made in November and previously in March as outlined in paragraphs 22 and 27.
31. The Council responded and stated that it could not enforce a voluntary agreement and the investigations had not found a statutory nuisance. It said that as there was no ongoing nuisance it would close the complaint, but it would reinvestigate if it occurred again in the summer.
32. Mr X contacted the Council in April 2021 to state Mr G was again feeding birds excessively and was not following the agreement. He also asked for further information on the mediation. Mr X wrote to the Council again in May asking for information on the mediation it had offered.
33. In May the Council responded and stated Mr G no longer wished to complete the mediation. It also stated it closed the complaint in January and if Mr X wanted it to investigate it as a statutory nuisance, he must complete log sheets again.
34. Dissatisfied with the Council’s response Mr X complained to us.
35. In response to my enquiries the Council could not provide the case file or statutory nuisance investigation records for Mr X’s complaint. It also could not provide some of the correspondence Mr X referred to in his emails as the Officer no longer worked for the Council. The Council provided a chronology of actions on the case which provided some information on events.

My findings

36. The Council started a statutory nuisance investigation on three separate occasions. There is a lack of records and a lack of evidence showing how it considered the information when it decided there was no statutory nuisance and how it communicated this to Mr X. While it is down to the Council to use its professional judgement to make a decision on whether Mr G’s actions amounted to statutory nuisance, we expect to see clear and transparent records of how it made that decision. The lack of investigation records is poor administrative practice and is fault. It leaves uncertainty about the decisions and actions the Council took during its investigations and how it arrived at its conclusions.
37. The Council did not respond to the complaint Mr X raised in March 2020. That was fault and caused Mr X frustration and uncertainty.
38. The Council Officer told Mr X the stress of the situation on Mrs X and Mrs G was potentially enough to issue a prevention of nuisance notice to both households. In its response to my enquiries the Council stated the Officer did not intend this to be a threat. The Environmental Protection Act 1990 does not cover stress as a statutory nuisance and therefore there is no power to issue a prevention notice on that basis. The Council’s actions were at fault and caused Mr X distress.
39. The Council offered Mr X mediation as early as March 2020. It completed a referral for mediation but there is no evidence the Council progressed this any further, despite Mr X requesting it. When it eventually did, Mr G stated he no longer wished to participate. The delay in arranging and offering mediation was fault and leaves uncertainty around whether the outcome would have been different if the Council had acted sooner on its offer.

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Agreed action

40. Within one month of this decision the Council should:
• write to Mr X and apologise for the uncertainty, frustration and distress caused by the poor record keeping of its investigations into Mr X’s reports of statutory nuisance.
• pay Mr X £100 to recognise the time and trouble caused to him by the poor complaint handling and the delay in arranging mediation; and
41. Within two months of this decision the Council should remind all officers to keep accurate records of investigations, decisions and copies of correspondence. It should review how it retains all investigation records for review should officers leave their role. It should provide us with evidence it has done so.

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Final decision

42. I have completed my investigation. I have found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman