Summary: There was no fault by the Council in a complaint that it abused its planning and development responsibilities over a multi use games area.

The complaint

1. I refer to the complainant as Mrs X. Mrs X says the Council abused its planning and development responsibilities over a multi use games area.
2. The complaint involves a housing development near Mrs X’s home. Mrs X says:
• The Council subjected residents to unacceptable anti-social behaviour, intrusion, light pollution and nuisance. This was as a result of the Council failing to discuss the details of the proposed plans and development properly and directly with residents.
• The Council falsely claims residents were fully consulted on the layout of the courts including the unlawful erection of floodlights on tennis courts; the change of planning permission from a basketball court to a multi use games area (MUGA); the unlawful placing a public right of way behind her home; and denial of their legal right to object to any of the proposals.
• The location of the courts and alleyway breaches guidance from Sport England.
• Residents have been subjected to untruths, half-truths, manipulation of the truth, maladministration, and mismanagement since 2015. Mrs X says the Council consistently acted to make their lives a misery for long periods of the day and night. The complaint concerns the arrogance of some of the Council’s employees who continue to excuse and dismiss every issue raised without evidence and in the hope they will tire and go away.
• The Council denied her a stage one complaint response instead addressing her complaint only at the final stage of its complaint process. The response was late.
3. Mrs X wants the Council to do the following to resolve the complaint:
• install new gates
• close the alleyway with locked gates and fencing
• remove floodlights to tennis courts
• repair netting immediately
• lock gates to the MUGA before dark
• Inform her of opening & closing time for MUGA
• provide contact details for its staff
• cut back overgrown shrubs
• soundproof back of football metal grill
• soundproof front of basketball board
• allow her to submit detailed evidence

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The Ombudsman’s role and powers

4. 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)
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. 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

7. I read the 45 page letter of complaint Mrs X sent to the Ombudsman. I read background correspondence between Mrs X and the Council from 2019 to the present. I sent my initial thoughts on the complaint to Mrs X and the Council and considered the comments of both parties on the draft statement.

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What I found

Government guidance on anti-social behaviour and nuisance

Statutory nuisance

8. Councils must look into complaints about noise that could be a statutory nuisance under the Environmental Protection Act 1990.The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
9. For a noise to count as a statutory nuisance, it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises
• Injure health or be likely to injure health
10. Generally, the statutory nuisance will need to be witnessed by the Environmental Health Officer and he/she will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has actually occurred.
11. 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.
12. Those served with an abatement notice can appeal to a Magistrates Court. In certain cases, people who have used the best practicable means to stop or reduce the noise nuisance may be able to use this as grounds for appeal or a defence if prosecuted. Best practicable means involves having regard to local conditions and circumstances, the current state of technological knowledge and financial implications.
13. It is open to members of the public to bring their own case to the Magistrates Court under section 82 of the Environmental Protection Act 1990 and to ask the court to serve an abatement notice

Pollution

14. Under the Environmental Protection Act 1990 it is an offence to cause a statutory nuisance. If someone complains about nuisance from pollution, the Council should investigate and decide whether it is a statutory nuisance. It can also choose to take informal action if something causes nuisance but is not a statutory nuisance, such as writing to the owner.
15. The Council must be satisfied a nuisance exists. As in noise complaints the Officer will come to an independent judgement taking into account the type of nuisance, duration, intensity and location to decide whether a statutory nuisance exists.

Anti-social behaviour

16. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour as:

“(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person

(b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or

(c) conduct capable of causing housing related nuisance or annoyance to any person.”

17. Some examples 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
18. On-going anti-social behaviour may need intervention by organisations such as councils, police, health and registered social landlords.
19. Section 17 of the Crime and Disorder Act 1998 places a statutory duty on named partners to consider the reduction of crime and disorder when exercising their core functions. Section 17 places a general duty on councils to take action to combat anti-social behaviour. Councils can discharge this duty in a variety of ways. This includes informal intervention and use of powers under the Environmental Protection Act 1990; the Town and Country Planning Act 1990; the Housing Act 2004; and the Anti-Social Behaviour, Crime and Policing Act 2014.

Action taken by the Council in response to the complaint from Mrs X and others

20. The Council met with residents in 2019. It decided to:
• Install additional louvres to floodlights to mitigate light spill from floodlights over the tennis courts and MUGA.
• Install another CCTV camera along a footpath adjacent to the MUGA and tennis courts.
• Place an additional netting over the top of the MUGA to reduce the risk of balls entering neighbouring properties.
• Install a hedge in a gap in a nearby hedgerow.
• Install signs referring the code of conduct for use of the games area.
• The company that manages the games area would liaise with the Police Safer Neighbourhood Team.
• Regular monitoring of the facility.

Finding

Concerns about the Council’s conduct of the planning application for the development.

21. Mrs X’s concerns about the Council’s conduct of the planning application for the development including the consultation or lack of consultation with residents are caught by the time restriction on the Ombudsman’s power to investigate complaints.
22. A complaint must be made to the Ombudsman within 12 months of a complainant’s awareness of the subject of the complaint. I have considered whether there are grounds to exercise discretion to investigate these concerns now. I do not find there are good reasons to do so. Mrs X’s references to defects in the Council’s handling of the planning application are caught by the time restriction as these involve events that occurred between 2015 and 2017. I have not seen any action by the Council which impeded Mrs X’s ability to complain to the Council and the Ombudsman within the material time.

Concerns about anti-social behaviour, noise and light pollution since 2019

23. The Ombudsman expects to see councils take action to tackle anti-social behaviour, noise, or light pollution using whatever tools available under various Acts of Parliament as I outlined above.
24. In this case, the Council acted to reduce the incidence of anti-social behaviour reported by Mrs X and others. I note Mrs X is dissatisfied with the action taken by the Council and wants it to go further. However, I do not find fault with the action taken by the Council. It took reasonable steps to investigate the problems raised by residents and proposed actions to mitigate the impact of use of the games area.

Concerns about statements of officers, alleged arrogance

25. I do not propose to investigate this aspect of the complaint as it largely involves matters which are caught by the time restriction and so already outside the Ombudsman’s jurisdiction.

Concerns about the Council’s complaint response

26. The Council may have responded to Mrs X at the second and final stage of its complaints process because it considered the amount of earlier correspondence with Mrs X directly and through a local councillor warranted a one stage complaint process.
27. It may be, on the other hand, that the Council simply omitted a stage in the complaints process. If so, I do not find this omission was significant to lead me to find fault by the Council. While the Council did not respond twice to Mrs X’s complaint, I am satisfied its position on the matter was properly explained to Mrs X.
28. The Council apologised for the late reply. I am satisfied this was the appropriate remedy for the lateness of its complaint response.

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Final decision

29. I have closed this complaint because I did not find fault by the Council in the matters raised here.

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Investigator's decision on behalf of the Ombudsman