Summary: There is no fault in the Council’s handling of Mrs Y’s reports about nuisance and anti-social behaviour from a nearby football club. The Council has investigated the reports before making a professional judgement that they do not reach the threshold for formal notices. We cannot interfere with the merits of that decision because there is no evidence of fault. We have not investigated the other issues raised by Mrs Y because they are either too old for us to consider, or there is another agency better placed to investigate.

The complaint

1. Mrs Y complains the Council has failed to take appropriate action to abate the nuisance and anti-social behaviour she experiences from a nearby football club.
2. In particular, Mrs Y complains about the Council’s decision not to progress a Community Protection Warning (CPW) to a Community Protection Notice (CPN).
3. Mrs Y also complains the Council has failed to fulfil its Health and Safety duties in relation to the site.
4. Mrs Y says she has experienced injustice because she regularly receives footballs and litter into her garden as well as experiencing general nuisance from staff and users of the club.

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What I have investigated

5. I have investigated the reports made by Mrs Y to the Council between September and December 2021. I have also investigated the Council’s actions in relation to the CPW issued against the club in 2020.
6. I have not investigated Mrs Y’s concerns about the general use of the club, health and safety breaches and the Council’s use of body-warn cameras for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

7. 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)
8. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6))
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
10. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
11. 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

12. During my investigation I discussed the complaint with Mrs Y and considered any information she provided, including video clips of the problems she experiences.
13. I made enquiries of the Council and considered its response alongside the relevant law and guidance, cited where relevant in this statement.
14. I issued my provisional findings in a draft decision statement and invited comments from Mrs Y and the Council. I considered any comments received before I made a final decision.

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What I found

What should happen

Anti-social behaviour

15. Under the ‘Anti-Social Behaviour, Crime and Policing Act’ (2014) councils and police forces can issue Community Protection Notices (CPNs) to stop anti-social behaviour (ASB). CPNs are like statutory nuisance abatement notices, except they can be issued for any type of ASB, including things which do not fall under the statutory nuisance regime.
16. CPNs are usually issued for behaviour which is detrimental to the person affected, persistent or continuing in nature and unreasonable. A CPN should explain what the recipient must do to avoid causing or continuing to cause ASB. This can include positive requirements, as well behaviour they must avoid. CPNs can run indefinitely, and failure to comply is an offence which can lead to prosecution and a fine.
17. It is for the investigating officer to decide whether the behaviour is unreasonable, persistent and detrimental. Officers will consider the available evidence, refer to relevant caselaw and use their professional judgement when deciding whether to issue a CPN.
18. Before issuing a CPN, the Council must first give the recipient a formal written warning with a timescale for compliance. This is referred to as a ‘Community Protection Warning’ (CPW). The CPW must make clear that a CPN may be issued if the behaviour in question does not cease.

Statutory Nuisance

19. Councils must investigate complaints about matters that could be a statutory nuisance under the Environmental Protection Act (1990). For something to be considered a 'statutory nuisance' it must:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• Injure health or be likely to injure health
20. The officer dealing with the case will reach an independent judgement about whether the matter complained about constitutes a statutory nuisance. If the officer decides a statutory nuisance is happening, or will happen in the future, the Council must serve an abatement notice. This requires whoever is responsible to stop or restrict the nuisance. If someone does not comply with an abatement notice they can be prosecuted and fined.
21. 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.

What happened

Community Protection Warning

22. Mrs Y lives close to a social club which has recreational fields sometimes used for football matches. I will refer to this as ‘the site’ or ‘the club’. Mrs Y has longstanding concerns about the use of the site and the attitude of its staff and visitors. Mrs Y took private civil action against the site in 2020 for littering and damage to her property caused by footballs. I will not repeat the entire history of Mrs Y’s complaint here, however it is relevant to note the court awarded £90 to Mrs Y for “damage to fencing and a fence panel” and a further £25 for her costs in pursuing the case.
23. Following the court case, Mrs Y contacted the Council in late 2020 to report concerns about the use of the site and the continued problems with litter and footballs. A council officer visited the site and Mrs Y on 5 September 2020. The officer wore a body camera and filmed an exchange with Mrs Y.
24. The Council held a meeting with the club to discuss the issues. The Council officer reviewed the pitches and found no evidence of litter. The officer also noted the addition of metal fencing installed to help protect the fencing of adjacent residents. The Council provided the club with general advice including, “.. I ask that you look at a way of heightening the fence or moving the playing area to increase the distance from the neighbouring boundaries”
25. The club accepted that footballs do sometimes go over Mrs Y’s fence. The Council noted its view that, although this was a private nuisance, it expected the club to take preventative measures to improve the situation. On 18 September 2020 the Council issued a CPW for ‘unreasonable behaviour’ including:
• Footballs kicked over the fence of neighbouring properties
• People from the pitch climbing over fences to retrieve balls without owner permission
• Litter left behind following football matches
26. To improve the behaviour, the Council asked the club to take reasonable steps to:
• Prevent balls being kicked over the fences of neighbouring properties
• Prevent adults and children from climbing over the fences
• Prevent an accumulation of litter left behind by visitors.
27. The club responded to the Council in October 2020. It explained that it has many litter bins around the fields and has realigned its pitches to ensure the one closest to Mrs Y is used less, and on average only once a fortnight. The club also explained it had considered the installation of netting, but this was at a considerable cost. As an alternative measure the club says it installed an extra length of fencing near to Mrs Y’s fence.
28. The Council considered the club’s response to the CPW. The records show the officer decided the club had taken “reasonable steps” as requested in the CPW to prevent balls from hitting Mrs Y’s fence. The Council also felt the site had no further action to take in respect of litter because it has several bins in place and the site was found to be clean and tidy upon visiting.
29. The Council decided to take no further action and did not proceed with a CPN because, “I am satisfied the club has complied with the conditions of the CPW and I do not believe there are any further steps they could take which could fall under the term ‘reasonable’.” A manager reviewed the case and commented, “this matter should be dealt with privately unless ASB, statutory nuisance or criminal matters are substantiated or can be determined”.
30. The Council advised Mrs Y to continue reporting any issues which she felt may constitute ASB or nuisance.

Reports made by Mrs Y in 2021

31. In September 2021 Mrs Y emailed reports of “health and safety risks” to the Council. She included a video recorded by her home CCTV cameras showing a football entering her land over the fence.
32. The Council’s Environmental Health team made internal enquiries with its Health and Safety (H&S) officer. They confirmed the Council has no powers under the Health and Safety at Work Act (1974) because the Council’s powers extend only to ensuring the safety of staff and visitors in an “enforced premises” rather than a recreational site.
33. The Council does, however, have powers to investigate a possible statutory nuisance. The officer noted their view that the issues raised did not “… unreasonably and substantially interfere with the use of enjoyment of a home or other premises, injure health or likely to injure health”.
34. The Council wrote to Mrs Y to advise that it had no powers to act upon the issues she reported because they did not amount to a statutory nuisance. The Council advised Mrs Y that she may wish to seek advice about pursuing a civil case against the club.
35. Dissatisfied with the response, Mrs Y emailed the Council again to enquire why it could not issue a Community Protection Notice (CPN) against the site. The Council said it would make further enquiries to see if it could support Mrs Y in any other ways.
36. Mrs Y submitted two further video clips to the Council in November showing a football entering a tree in her garden, and a football on the ground underneath the tree. The Council reiterated its previous advice that it could not assist Mrs Y with the problems she has raised; they are not evidence of anti-social behaviour or a statutory nuisance. The Council told Mrs Y that she may wish to consult a solicitor to discuss her options about taking private civil action.

Was there fault in the Council’s actions causing injustice to Mrs Y?

37. I appreciate that Mrs Y was hopeful the Council would take formal action against the club once it had issued as CPW. I recognise it was a disappointment when she discovered the Council intended to take no further action after deciding the club had taken reasonable steps to prevent the issues complained about.
38. However, the LGSCO is unable to criticise the merits of a decision properly taken. Our role is to look at the procedure followed by the Council when deciding whether to issue a CPN or an abatement notice. If we find fault in the Council’s decision making, for example a failure to consider policies, law or guidance, or failing to consider relevant evidence, we can investigate the decision itself and decide whether it was properly taken.
39. There is no evidence of fault in this case. The Council’s CPW set out clearly what ‘reasonable’ steps it expected the club to take. The club then provided details to the Council of the measures undertaken, such as fencing and using the pitch closest to Mrs Y’s home once fortnightly on average. The Council was satisfied the club had taken ‘reasonable’ steps to prevent footballs entering Mrs Y’s land.
40. I recognise that Mrs Y strongly disagrees with the decision. She says the fencing put in by the club is not adequate, and her CCTV footage demonstrates that footballs still enter her land. Mrs Y has provided clips of CCTV footage which show balls entering her property on five occasions between September and December 2021. There is no evidence of any litter thrown over Mrs Y’s fence in the clips provided. Mrs Y said that prior to the CPW, there were times when footballs entered her property eight times in one day. It therefore follows, by Mrs Y’s own assertion, that the frequency of footballs and litter coming over the fence has reduced significantly since the Council’s involvement in the case.
41. When Mrs Y went to court, she says the judge told the club it must install a two metre “dead zone” around the perimeter of the fields to minimise damage to neighbouring properties. I have considered the court judgement, as provided by Mrs Y, and there is no reference to this. In any event, the Council has no role to play in enforcing a court judgement. The Council’s role in this context is to consider ASB and statutory nuisance. If Mrs Y has evidence to show the club has not complied with the terms of a court judgement, then her best course of action would be to seek independent legal advice.
42. I am satisfied the Council acted without fault when it decided not to issue a CPN in 2020 or an abatement notice in 2021. The contemporaneous records show that officers have considered each report made by Mrs Y and consulted with managers before deciding that the reported issues do not amount to behaviour that is unreasonable, persistent and detrimental. The Council also decided the issues would not unreasonably and substantially interfere with the use or enjoyment of Mrs Y’s home or injure or likely to injure Mrs Y’s health. The Council was entitled to reach this view.

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Final decision

43. We have completed our investigation with a finding of no fault in the matters we have investigated. Our reasons for not investigating the other parts of Mrs Y’s complaint are set out in the section below.

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Parts of the complaint that I did not investigate

General use of the site

44. I have not investigated Mrs Y’s concerns about the use of the site and whether the Council has a role to play in ensuring the health and safety of the users of the site and those who live nearby. This is because Mrs Y has lived by the club for many years and has already made several complaints to the Council and the LGSCO about the use of the site. In May 2013 the LGSCO decided not to investigate Mrs Y’s complaint because we had already investigated a similar complaint in 2010. I will not revisit those issues as part of this investigation.

Destruction of evidence in 2008

45. Mrs Y complains the Council destroyed a petition signed and submitted by residents in 2008. I have not investigated this because it is more likely than not that Mrs Y has been aware of this for more than 12 months. Mrs Y has made several complaints to the LGSCO since 2008 and so it is my view that she could and should have raised this matter in one of her earlier complaints to us.

Body worn video and data retention

46. Mrs Y complains a Council officer recorded her images without her consent when he visited her property wearing a body worn camera. The Council says the officer advised Mrs Y he was filming. Mrs Y disputes this. The Council says it has destroyed the footage in accordance with its data retention policy. This means that we cannot ascertain whether the officer alerted Mrs Y to the recording.
47. When Mrs Y complained about the officer, the Council referred her to its ‘privacy notice’ and its ‘Privacy Impact Assessment’ which set out how the Council uses and stores personal data, including images captured by body worn video. The Council’s assessment makes clear that body worn cameras will be operated in accordance with the Information Commissioner’s Code of Practice.
48. I have not investigated this part of Mrs Y’s complaint because any concerns she has about the Council capturing her images without her consent, and its alleged failure to retain the footage, would fall within the jurisdiction of the Information Commissioner’s Office (ICO). It would be reasonable to expect Mrs Y to complain to the ICO about these matters.

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Investigator's decision on behalf of the Ombudsman