Summary: Miss P complains about the Council’s lack of action to tackle noise nuisance from her neighbour. The Ombudsman’s view is that while the process was understandably distressing for Miss P, there was no significant fault by the Council. It could not take action without suitable evidence.

The complaint

1. The complainant, whom I shall refer to as Miss P, complains:
• the Council delayed taking enforcement action against the anti-social behaviour and noise from her neighbour;
• in particular, after the Council served a second abatement notice, she made many reports to the Council. Yet it took no further action and did not contact her again.

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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 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss P;
• made enquiries of the Council and considered its response;
• spoken to Miss P;
• sent draft decisions and considered the responses I received, including new information from Miss P and the Council; and
• considered a decision by the Housing Ombudsman.

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What I found

Legal and administrative background

6. Council Environmental Health/Protection Teams provide a service to investigate complaints of statutory nuisance. The statutory rules about nuisance can be found in the Environmental Protection Act 1990. Under S80(1) of the Act, a local authority has a statutory duty to take such steps as are reasonably practicable to investigate complaints about noise or other nuisance. It must take action to remedy the problem if it considers there is a statutory nuisance.
7. Noise can amount to a statutory nuisance. If an officer witnesses noise which in her opinion amounts to statutory nuisance, she may start enforcement action to stop the nuisance and prevent its recurrence. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers 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.
8. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
9. Statutory nuisance is a criminal offence. So the burden of proof is “beyond reasonable doubt". That means councils will need robust evidence before deciding to take court action against a perpetrator.

What happened

10. In 2017 Miss P first reported anti-social behaviour (ASB) from her new neighbour – the smell of cannabis. The Council advised her to speak to the police and the neighbour’s landlord (a housing association).
11. Shortly afterwards, Miss P also reported excessive noise from the neighbour. A Council officer visited and witnessed the noise, and some ASB. The officer called the police.
12. After its officers witnessed further incidents, in May 2017 the Council issued the neighbour with an abatement notice, requiring them to reduce the noise.
13. Miss P was in contact with the housing association in 2018, following ASB, including noise from the neighbour. The housing association gave Miss P diary sheets. It also installed noise recording equipment. But there were problems with the equipment. Miss P advised the housing association it did not record all incidents of noise during the period.
14. The Council’s file does not have any record of any contact from either Miss P or the housing association in 2018. Its next record is of multiple reports of noise from Miss P in April and May 2019. An officer witnessed the noise. The officer’s view was it constituted a statutory nuisance.
15. The Council decided it could no longer rely on the 2017 abatement notice (it cited case law on this). So it served the neighbour with a new abatement notice. An officer contacted the neighbour. The Council asked Miss P to monitor the noise for a week. An officer visited in May, but did not witness any noise. A report from the Housing Ombudsman shows the neighbour’s landlord was involved. Miss P also called the police.
16. In response to a draft decision, the Council sent me emails, not in its case record, showing its officer contacted the housing association and the police around this time. The housing association told the Council it was seeking to move Miss P’s neighbour. The Council noted in its response to a police enquiry that Miss P had access (24 hours a day, seven days a week) to its out of hours service (until October 2019, when the Council stopped that service).
17. The Council’s next records of noise are from August 2019, when Miss P reported four further incidents.
18. The Council’s records have a one off report from Miss P in October 2019. The next record in the Council’s files is from February 2020. Miss P reported further noise at the end of March, April and May. The Council sent her some sheets to keep a diary. It also noted its officers would visit Miss P when it could (the first COVID-19 lockdown had started by then).
19. In April Miss P asked the Council to contact her. In May the Council’s officer wrote to Miss P. This letter set out the Council’s actions.
• It had offered to visit the neighbour and Miss P, once the lockdown ended.
• Abatement notices became unenforceable after a time – roughly after about six months without reports of nuisance. This was because the conclusion a court would likely reach is the noise was not constant in the time between the reports.
• The Council could not take court action if its officers had not recently witnessed noise nuisance.
20. In May the Council’s officer spoke to the neighbour and decided to install noise recording equipment in Miss P’s home, although Miss P declined that option.
21. In July a Council manager contacted Miss P explaining that taking action against sporadic noise was difficult, which is why the Council wanted her to keep a diary for three weeks. Miss P’s response said she felt the Council should by then have the evidence of the noise nuisance, given how long it had been aware of it.
22. During July, August and September Miss P reported incidents of ASB and noise from her neighbour. Miss P asked to complain about the Council’s lack of action.
23. The Council’s complaint responses reiterated its view that it could not take formal action without robust evidence to use in court. It provided an apology from a Council officer for not replying to one of Miss P’s emails. It advised of the action it was continuing to take, including warning letters to the neighbour.
24. Miss P complained to the Ombudsman. In response to our enquiries, the Council advised:
• “The Council completely sympathises with Miss [P] and understands the frustration she has suffered with the neighbour. Unfortunately, for the Council to take action for a contravention of a noise abatement Notice, evidence must be gathered to the criminal standard. From a practical point of view, this would necessitate a suitably experienced noise officer personally witnessing the nuisance. This can be relatively easy in cases where noise occurs on a very regular basis but very difficult in cases like this where the noise is more sporadic and less predictable. Recorded evidence and or the evidence from the complainant alone would not satisfy the legal criminal threshold required for criminal proceedings.”
• it had not had any further contact from Miss P since September 2020. Miss P says incidents continued, but she gave up contacting the Council, as it was not doing anything;
• its view was the best way to resolve the problem was for the housing association to move the neighbour, and it had been in touch with the landlord about this since December 2020. It later sent us information that it was in fact in contact with the housing association the previous year, in April;
• the neighbour left the property in the spring of 2021.
25. In response to my draft decision, Miss P asked me to contact the Housing Ombudsman, as it issued a decision on her complaint about the landlord. That Ombudsman’s statement notes:
• extensive contact and action by the landlord;
• the Housing Ombudsman’s view was there was the possibility the landlord could have done more to deal with Miss P’s reports of anti-social behaviour from the neighbour;
• a lack of liaison with other parties by the landlord;
• in 2019 the landlord did begin legal action to evict the neighbour, but there were other issues, related to Miss P’s neighbour’s circumstances, the housing association needed to take into account;
• it upheld Miss P’s complaint, as its view was the housing association had not followed its own policy in dealing with the anti-social behaviour – it lacked an action plan. And it had not adequately communicated with Miss P.
26. I issued a revised draft decision, as the Council’s file did not show any contact with the neighbour’s landlord in 2019, which I provisionally found it should have done. I also noted it had suggested in 2020 Miss P install noise recording equipment, in an attempt to establish a pattern, which it could have suggested in 2019.
27. In response to my revised draft decision, the Council:
• sent some email chains. These showed responses police contact and some contact with the housing association, including an awareness the landlord was seeking to move the neighbour. These emails were not in the file the Council sent me in response to my initial enquiries or first draft decision;
• pointed out that in 2019 the Council still had an out of hours service, which Miss P had access to. So noise recording equipment would not then have added anything to its investigation.

Was there fault by the Council?

28. The law says a council should take such steps as are reasonably practicable to investigate complaints about noise nuisance. The Ombudsman cannot find fault where a council has taken suitable steps to investigate. The law is clear that a decision about whether noise amounts to a statutory nuisance is for an officer alone to make.
29. It is now too late to consider the Council’s 2017 investigation and I cannot see any reason that prevented Miss P from contacting us then. I also will not investigate the 2018 events, as there are no records in the Council’s file that it was involved then.
30. In 2019, the Council took some action to respond to Miss P’s reports. It carried out site investigations and considered the evidence she provided. It considered there was a statutory nuisance and served an abatement notice.
31. The Council has now sent information showing it had contacted the neighbour’s landlord in 2019. I would have expected to have seen this information in the Council’s file. I would also have expected it to have sent it in response to my enquiries. I say this as the Ombudsman’s view is keeping full records is key to an organisation being open and accountable: one of our key principles of good administrative practice. Not having those records on file means there was also the potential for the Council to have hampered its own investigation – for example if a new officer had to take over the investigation. So I would ask the Council, as a learning point from this statement, to ensure all substantive actions are recorded on the file.
32. But this information does show that the Council was in touch with the landlord in 2019. And that the landlord told the Council it was seeking to move the neighbour. It would have been good practice for the Council to kept in touch with both the landlord and Miss P after this. But the Housing Ombudsman’s decision shows that there were issues about the neighbour’s circumstances the Council would have had to consider, even if it had obtained evidence it thought it could use in court. I conclude from that, on the balance of probabilities, it would have likely, in any case, to have worked with the landlord to deal with the issue.
33. So, the primary problem was the landlord took some time to move the neighbour. This was partly due to concerns about the neighbour’s circumstances. But the move was also delayed by the COVID-19 pandemic.
34. I have also changed my view about whether the Council should have installed monitoring equipment in 2019. My earlier view was, while this was unlikely to have produced evidence usable in court, it might have established a pattern of when the officers might most likely witness noise. But I accept the Council’s comment that, as in 2019 it still had an out of hours service, the recording equipment would not have added anything to its investigation. The fact that officers did not further witness any noise in that period, does not change that view.
35. I do not have the evidence to say the Council was at fault in its 2020 actions. By then the COVID-19 pandemic and the first lockdown limited its actions. And it offered Miss P options to help it to gather evidence. Although I understand why Miss P was frustrated she was being asked to do this again, it did mean it further lessened the Council’s prospects for gathering the evidence it needed before it could consider further action.

Conclusion

36. Miss P has described the distress the issue with her neighbour caused her. I empathise with the situation she was in. But it is important to remember the distress was in large part due to the actions of her neighbour. And the time it took to move the neighbour was because of the actions of the housing association, not the Council.
37. To take court action, the Council would have needed to have shown (beyond reasonable doubt) that Miss P’s noise from the neighbour was a statutory nuisance (ie proof of noise, in itself, would not have been enough). The factors in deciding whether noise amounts to a statutory nuisance includes the location, times, loudness, duration and how often the noise occurred. Gathering this evidence is often difficult in cases when noise is sporadic.
38. I have noted some actions where the Council could have done better – in moving records to its case file and in keeping in touch with Miss P. But my view is these do not meet a threshold for upholding the complaint.

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Final decision

39. I do not uphold the complaint and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman