Summary: The Council was not at fault for deciding not to take enforcement action concerning Mr X’s noise nuisance complaints. There was some fault with how the Council communicated with Mr X. The Council agreed to apologise to Mr X and consider some service improvements.

The complaint

1. Mr X complains the Council failed to take any action against his neighbour for noise nuisance caused by barking dogs.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. As part of this investigation I considered the information provided by Mr X. I made enquires with the Council and considered the information received in response. I sent a draft of this decision to Mr X and the Council and considered comments received in response.

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What I found

Law and guidance

6. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance includes noise from premises.
7. 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.
8. 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.
9. Councils will gather evidence to find out whether the noise is causing a statutory nuisance. They do not have to witness noise nuisance in person. They can consider a range of evidence such as noise recordings, noise diaries and witness statements. Council officers will use their professional judgement to decide whether a statutory nuisance exists.
10. 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
11. 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.

What happened

12. In late February 2022, Mr X wrote to the Council to complain about dogs barking from his neighbour’s property. Following this letter, Mr X discussed the noise with a Council Officer. Mr X reported his neighbour had two large dogs which bark for long periods, often at unsocial hours.
13. The Council wrote to Mr X and told him it was investigating his concerns. The Council sent Mr X diary sheets to record the noise. The Council also wrote to Mr X’s neighbour advising of the noise allegation.
14. In early March 2022, a Council Officer visited Mr X’s neighbour. Reports from the visit show the Officer heard a small amount of dog barking when they rang the doorbell.
15. In early April 2022, the Council carried out a follow up visit to Mr X’s neighbour. During this visit the Council Officer noted they could hear dogs from within the address, but did not consider this was enough to cause a nuisance.
16. On 13 March 2022, Mr X wrote to the Council asking for an update with the case. The Council said it did not receive this letter.
17. On 7 April 2022, the Council decided to close the case as it had not received any further information, nor had it received any further complaints of noise.
18. In May 2022, Mr X approached the Ombudsman and said the Council had not investigated his allegations of dog barking. After contacting the Council, it agreed to progress Mr X’s complaint through its complaints procedure.
19. On 27 May 2022, the Council provided a formal response to Mr X’s complaint. The Council said it would re-open Mr X’s case and carry out further investigations about the alleged dog barking. This was on the basis the Council did not receive Mr X’s letter, dated 13 March 2022, and if it had it would not have closed his case.
20. On 30 May 2022, Mr X wrote to the Council as he was unhappy with its complaint response. Mr X said the Council ignored a letter he sent and had not considered the diary sheets he provided.
21. The Council re-opened its investigation into the allegations of noise. The Council received diary sheets from Mr X and carried out 10 site visits between 13 June 2022 and 21 July 2022. During these visits the Council Officer either heard no dog barking or a small amount which the Officer did not consider was prolonged or excessive. The Council Officer visited the site very early in the morning and throughout the day. The Council also said it visited neighbouring properties to see if they had heard dog barking, however the Council did not record this in its investigation notes.
22. On 25 July 2022, the Council decided to close the investigation. The Council explained its rationale for this was it had only received reports of noise from Mr X and the diary sheets Mr X provided only showed dog barking for very short periods, mostly during social hours. The Council said it carried out approximately seven hours of monitoring over a three month period and found no evidence to substantiate a noise nuisance.
23. The Council provided its final complaint response to Mr X on 9 November 2022. The Council said it investigated Mr X’s concerns and visited the site in April, June and July 2022, spoke to the neighbours and alleged perpetrator of the nuisance and considered Mr X’s diary sheets when coming to its decision. The Council said it told Mr X on site on 25 July 2022 it would close the case. The Council apologised for a lack of communication with Mr X through the investigation.

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Analysis

24. 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 Councils’ officers. Instead, we focus on the process by which the decision was made.

Allegations of noise nuisance

25. I have not found the Council at fault for its decision not to take enforcement action against Mr X’s neighbour. In reaching this view I am mindful the Council, during its investigation, visited the site over 10 times to monitor the alleged noise and did not find evidence of excessive or prolonged dog barking. The Council also considered the diary sheets provided by Mr X. These showed periods of short dog barking and generally at sociable hours.
26. The Council decided it did not have enough evidence to categorise the noise as a statutory nuisance. This was a decision the Council was entitled to make, based on the evidence it obtained. While I acknowledge Mr X disagrees, there is insufficient evidence of fault by the Council in how it came to this decision.
27. The Council did say it consulted with Mr X’s neighbours about the noise, however it did not record this in its notes. While this does amount to fault, I am satisfied that it did not have any bearing on the Council’s decision, given the extensive monitoring carried out by Council officers and consideration of Mr X’s diary sheets.
28. The Council failed to write to Mr X following the conclusion of its investigation or tell him about his option to take his own private action under section 82 of the Environmental Protection Act 1990. This is fault. The Council has acknowledged in its response to my enquiries it should have written to Mr X at the end of July 2022 to tell him the outcome of the investigation and to tell him about his option to pursue private action against his neighbour. Had the Council written to Mr X at the end of its investigation Mr X would have known the investigation had ended and at that stage could have considered his options for private action against his neighbour.

Complaint handling

29. The Council was at fault for how it handled Mr X’s complaint. After Mr X wrote to the Council on 30 May 2022 expressing his disagreement with the stage one response, the Council did not provide its final complaint response until 9 November 2022. This was well over the 10 working day response time stated in the Council’s complaints policy. As a result Mr X had to wait longer to bring his complaint to the Ombudsman.

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Agreed action

30. Within one month of my final decision, the Council agreed to carry out the following:
• Apologise to Mr X for:
1. not writing to him at the end of its investigation to explain the investigation had been concluded and;
2. not informing him about his option to take his own private action under section 82 of the Environmental Act 1990 and:
3. the time taken to provide a final complaint response.
• Consider its policy for dealing with noise complaints and ensure it has included the need to write to complainants to tell them the outcome of an investigation into noise nuisance and of their option to pursue private action under section 82 Environmental Protection Act 1990.
• Remind staff to respond to complaints within the timeframes in the Council’s complaints policy, and ensure complainants are updated if the Council is not able to respond within this timeframe.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation and found the Council was not at fault for deciding not to take enforcement action concerning Mr X’s noise nuisance complaints, however there was some fault with how the Council communicated with Mr X. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman