Summary: The Council was not at fault for how it considered Mr X’s reports of noise nuisance. There was some fault with how the Council communicated with Mr X, however this has not caused Mr X significant injustice.

The complaint

1. The complainant, whom I refer to as Mr X, complains about:
1. The way the Council handled his reports of noise nuisance and the level of action it took in response.
2. The way the Council has communicated with him about noise nuisance complaints.

Mr X says his sleep and work as been disturbed from the noise.

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What I have investigated

2. I have investigated how the Council responded to Mr X’s reports of noise nuisance relating to his case which opened in January 2020 and closed in September 2021, and his complaint about this in December 2020.
3. I have also investigated Mr X’s complaint, from October 2021, about the way the Council communicated with him.
4. Mr X has made further reports of noise nuisance about other dogs in his area. I have not investigated how the Council responded to these as Mr X has not complained about them.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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

8. As part of this investigation, I considered the complaint made by Mr X and the Council’s responses. I considered the information provided by Mr X. I made enquiries with the Council and considered the information provided in response. I sent a draft of this response to Mr X and the Council for comments.

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What I found

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
10. 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
11. 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.
12. 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.
13. 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.
14. Councils can also 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.
15. The Council’s policy on Noise Nuisance (the policy) says officer’s professional judgement is necessary to decide if a complaint can be considered a statutory nuisance. The Council uses evidence such as noise diaries, visits by officers to witness noise, and evidence from noise monitoring equipment to support an investigation.
16. The policy says the Council has its own noise monitoring equipment and before using this other options to gain evidence of a noise should be used first.
17. When deciding whether a statutory nuisance exists officer will consider the following factors:
• Loudness/impact of the noise.
• Duration.
• Time.
• Character of the area.
• Number of people affected.

What happened

18. There has been extensive correspondence between Mr X, and the Council since January 2020. In this section of the statement, I summarise key events but I do not refer to every single contact and communication.
19. In January 2020, Mr X reported a dog barking which he could hear from his home. This was coming from an adjoining neighbour’s property. Mr X sent the Council a log of the times this had occurred in January 2020, along with audio recordings. The Council opened a case and wrote to the accused owner of the dog. The Council also discussed the allegations with the accused dog owner over the telephone who denied Mr X’s allegations.
20. In early February 2020, the Council put Mr X on the list for noise monitoring equipment and told him there is a 4-5 week wait for installation. The Council also sent an officer to visit the area around Mr X’s property to see whether any dog barking could be heard. The officer reported no dog barking on this occasion.
21. On 18 March 2020, the Council emailed Mr X and asked him to provide details about the times the dog barking occurred or was more frequent. At the end of March 2020 national lockdown restrictions came into force as a result of the Covid 19 pandemic. The Council wrote to Mr X and said it could not install noise monitoring equipment in his property due to the restrictions. The Council provided Mr X with diary sheets to complete.
22. In May 2020, the Council spoke with Mr X and he said the dog barking was not as bad as the owners were at home. The Council asked Mr X to still submit logs of the noise.
23. In June 2020, the Council wrote to Mr X and asked him to submit log sheets of the noise. The Council also asked Mr X to contact it should there be any further incidents of noise. The Council said it would close Mr X’s case as it had not received further reports of noise, however the Council said it will review any new reports of noise from Mr X in the future.
24. In September 2020, Mr X contacted the Council to report noise from his neighbour’s dog barking. The Council sent further log sheets to Mr X to record the noise. Mr X returned these in November 2021. The Council then referred Mr X for noise monitoring equipment.
25. The Council interviewed the accused neighbour in December 2020 following Mr X’s reports and log sheets. In January 2021, the Council told Mr X it could offer him the next available noise monitoring equipment. The Council installed this on 12 February 2021. The Council collected the noise monitoring equipment from Mr X’s property on 23 March 2021.
26. Both and Environmental Health officer and a manager considered the recordings from the noise monitoring equipment. The Council considered the noise recorded was not excessive or frequent enough to be a statutory nuisance.
27. The Council wrote to Mr X on 7 May 2021 and told him the recordings did not meet the threshold to be a statutory nuisance or warrant legal action by the Council. The Council told Mr X two officers reviewed the noise recordings and considered the duration, time of day, and frequency of incidents when coming to their decision. The Council offered to go through the noise recordings with the accused to try to mediate the situation if Mr X was agreeable.
28. In July 2021, Mr X made further reports of barking dogs in the area. The Council visited the area on 11 August 2021. The officer did hear dog barking but did not consider this was a statutory nuisance.
29. On 13 August 2021, Mr X asked the Council to provide copies of the noise recordings from his property. Mr X sent further emails to the Council in August 2021 asking for copies of the noise recordings.
30. The Council provided the recordings to Mr X on 13 September 2021. Mr X said these recordings were not complete and did not show the decibel levels of the noise recorded. In late September 2021, the Council provided Mr X with the necessary information for him to download the software to access the information he requested. The Council said it was trying to establish the best way to provide Mr X, with this information and wanted to make sure Mr X did not have to pay for this software which is why it did not provide him with this sooner.
31. The Council closed the noise case on 24 September 2021 on the basis there was no substantial evidence to keep the investigation open. The Council told Mr X he could still report further issues of noise which the Council would look into.

Mr X’s complaints

32. Mr X complained to the Council in December 2020 that it had not taken effective action about a noise complaint he had made nearly 12 months ago, in January 2020.
33. The Council provided its stage one response on 4 January 2021. The Council said:
• Once it received Mr X’s reports it contacted his neighbour about the allegations.
• The officer handling his case visited the site in March 2020 and did not witness dog barking.
• When the national lockdown happened, the Council contacted Mr X and told him how this would affect his case. The Council said it would not be able to install noise monitoring equipment due to the lockdown.
• It closed Mr X’s case in June 2020 as there were no other incidents reported. The case was reopened in September 2020 after Mr X reported further noise and the Council was waiting to install noise monitoring equipment at Mr X’s property.
34. Mr X asked the Council to consider his complaint at stage two on 5 January 2021. Mr X said he was not aware the allegations were denied by his neighbour or that his audio recordings were listened to. Mr X said he was still waiting to receive noise monitoring equipment and was initially told the wait time was 4-5 weeks.
35. The Council provided its stage two response on 21 January 2021. The Council said:
• The case officer kept Mr X updated throughout the case and about the discussion he had with Mr X’s neighbour. From the case notes, the case officer was in regular contact with Mr X via email to provide updates.
• The case officer did listen to the recordings Mr X provided but explained to him the issues when using a customer’s own recordings for official evidence. The case officer told Mr X the level of evidence needed for the case.
• The case officer visited the site and used Mr X’s diary logs to determine when most likely to hear the dog barking.
• It offered Mr X noise monitoring equipment in February 2020 and told him there was a wait time of 4-5 weeks. The Council said the wait time for noise monitoring equipment changed and apologised for not keeping Mr X updated with the wait times. Following this the national lockdown occurred and in June 2020 the case was closed. The Council said a second referral for noise monitoring equipment was made in November 2020 as the case had been closed. The Council apologised for not keeping Mr X updated about getting this installed and will look to do this shortly.
36. Mr X raised a further formal complaint to the Council in October 2021. Mr X complained:
• The anti-social behaviour manager at the Council did not communicate with him in a timely manner about his noise nuisance reports. This related to communication between May 2021 and September 2021 which Mr X said the anti-social behaviour manager did not address or respond to.
• The Council has not provided copies of the information he requested on 13 August 2021. This related to copies of the noise recordings from the noise monitoring equipment.
37. The Council provided its stage one response on 20 October 2021. The Council said it had provided Mr X with the information he requested on 13 August 2021 and had told him how he could access this. The Council also said it had investigated his reports of noise and analysed the recordings obtained however did not consider these were a statutory nuisance.
38. Mr X responded to the Council on 25 October 2021 and said the Council had not understood his complaint. Mr X explained he was complaining about the level of communication received from the anti-social behaviour manager and that the Council did not provide him with noise recordings he requested on 13 August 2021.
39. The Council provided its stage two response in early November 2021. The Council said it sent the Mr X the recording clips and a copy of the analytical report from the noise monitoring equipment. It also arranged for him to access the app so he could listen to the files. The Council said it had done what Mr X requested and there is not another way it can share this information. The Council did acknowledge it should have dealt with this matter as a subject access request but said it responded within the correct timeframe.
40. Mr X responded to the Council and said it had not addressed his complaint in the stage two response.
41. Mr X remained dissatisfied and complained to the Ombudsman. Mr X said he did not believe the Council adequately investigated his reports about noise nuisance from January 2020. Mr X also complained about the Council’s lack of timely communications around noise nuisance, with the anti-social behaviour manager. Mr X said the Council had not addressed this complaint in its responses to him.

Analysis

Complaint a) How the Council handled reports of noise nuisance and the level of action it took in response.

42. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Council’s officers. Instead, we focus on the process by which the decision was made. My role is therefore not to consider whether the noise Mr X reported was a statutory nuisance, but rather whether the Council acted without fault when coming to its decision that the noise Mr X reported was not a statutory nuisance.
43. I have not found the Council at fault for how it came to its decision not to take action against Mr X’s neighbour or for how it investigated his reports of dog barking. Following receipt of Mr X’s reports of dog barking in January 2020, the Council contacted the owner of the dog about the allegations and referred Mr X for noise monitoring equipment. The Council also visited the site to try to witness the dog barking. This was a reasonable response from the Council and in line with its policy.
44. I accept the national lockdown changed how the Council could investigate the case as it could not install noise monitoring equipment. However, the Council continued to send Mr X diary logs and asked him to complete these. The Council closed the case after it had not received reports of noise from Mr X. When Mr X sent his diary logs back to the Council in November 2020, it referred him for noise monitoring equipment.
45. After the Council installed the noise monitoring equipment, it considered the recordings but decided these did not contain noise which would amount to a statutory nuisance. This was a decision the Council was entitled to make after considering the evidence presented to it. The Council showed it considered the time, frequency and duration of the noise when coming to its decision. I recognise Mr X disagrees with the decision, but this does not make it flawed.
46. I do recognise the Council did not update Mr X after the wait times for noise monitoring equipment changed in February 2020. The Council has acknowledged this and apologised. I consider this a reasonable response from the Council. The failure to tell Mr X about the increase in wait times for noise monitoring equipment has not impacted on the Council’s decision that there was no statutory nuisance.

Complaint b) How the Council communicated with Mr X about noise nuisance complaints.

47. Mr X complained about the level of communication he received from the anti-social behaviour manager from May 2021 until September 2021. Mr X provided a list of times he emailed the anti-social behaviour manager. It appears in May 2021 Mr X expected the anti-social behaviour manager to carry out a review of his complaint, which was decided in January 2021. In July 2021 Mr X received confirmation the complaint was not upheld.
48. I accept the Council should have updated Mr X sooner about this, however I cannot see that this has caused Mr X any significant injustice. It did not change the outcome of his complaint or the decision not to take any action concerning Mr X’s reports of a noise nuisance.
49. Mr X also said the Council did not properly consider this part of his complaint from October 2021 in its complaint responses. From the evidence seen, Mr X did explain to the Council that he was complaining about the level of communication from the anti-social behaviour manager. The Council did not address this element of his complaint in its responses to Mr X. While this is fault, I do not consider this has caused Mr X any significant injustice as it would not have changed the Council’s decision as to whether his reports were a statutory nuisance.

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Final decision

50. I have completed my investigation and found the Council was not at fault for how it dealt with Mr X’s reports of noise. There was some fault by the Council with how it communicated to Mr X, however this has not caused him significant injustice, so no remedy is recommended.

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Investigator's decision on behalf of the Ombudsman