Summary: We did not find fault with the way the Council investigated the complainant’s (Mr X) concerns about the dog barking noise from his neighbours’ property.

The complaint

1. Mr X complained about the way the Council had dealt with his reports of the excessive dog barking from his neighbours’ property. He said the Council’s officers had been biased and had failed to inform him of the progress of the case.
2. Mr X said the noise of barking had affected his health and well-being when he was recovering from a medical procedure. It has been negatively affecting his quality of life.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered Mr X’s complaint and the information he provided.
7. I made enquiries with the Council and considered the documents provided, including Assessment of Statutory Nuisance from Barking Dogs (‘Policy’) and Corporate Customer Feedback policy.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and Guidance

Anti-social behaviour

9. Section 17 of the Crime and Disorder Act 1998 places a general duty on councils to take action to combat anti-social behaviour (ASB). Councils will have a team to respond to and investigate complaints about ASB, liaising with the police and other agencies as necessary.
10. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation. For example, they may approach a complaint:
• as an environmental health issue, where the complaint is about noise or pollution;
• as a planning matter, where the complaint is about an inappropriate use of a building or facility;
• as a licensing matter, where the complaint is about a licensed premises, such as a pub or nightclub;
• as part of their duties as a social landlord, where the alleged perpetrator is a council tenant (although we are unable to investigate the council’s actions as a social landlord); or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.

Statutory noise nuisance

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances.
12. For a council to consider something a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
• injure health or be likely to injure health.
13. Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
14. 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.
15. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.

Council’s procedure for investigating noise nuisance from barking dogs

16. Following complaints about barking dogs the Council considers taking initial steps prior to a detailed investigation or taking enforcement action. These are:
• Gathering initial information;
• Where possible encouraging the complainant to discuss the problem directly with the person responsible;
• Sending an information letter and a diary sheet to the complainant;
• Sending an advisory letter to the person responsible for the alleged nuisance;
17. If the initial actions have not resolved the situation the Council will undertake more detailed investigation consisting of:
• The installation of a noise monitoring system or use of a noise application;
• Visit to the properties which should take place at a time when the barking is most likely to occur.
18. When deciding whether the barking amounts to a nuisance the officer will need to have regard to the specific circumstances and conditions witnessed that render the noise a material interference with the enjoyment of the complainant’s property.
19. Where noise from a barking dog fall below the threshold for a statutory nuisance but where it can be shown that the noise is unreasonable, persistent and is having a detrimental effect on the locality, the investigating officer can consider issuing a Community Safety notice.
20. Any victim of ASB) can demand a case review using the ‘community trigger’ where the relevant threshold is met.
21. It is possible for persons aggrieved by statutory nuisance from barking dogs to instigate proceedings themselves in the magistrates’ court by way of section 82 of the Environmental Protection Act 1990.

Council’s complaint procedure

22. In accordance with the information in the Council’s Corporate Customer Feedback policy the Council should respond to a complaint at stage one within ten working days. If the matter cannot be resolved within the agreed timescales, the Council will tell the complainant of the reasons for the delay and provide a target date for the response.
23. In Stage 2 the relevant director of the service will carry out an independent review of the complaint. The Council will respond within 17 working days. If there are reasons for extending these timescales, they will be published on the Council’s website and communicated to the complainants.

What happened

Chronology of Mr X’s reports and the Council’s actions

24. At the beginning of July 2022 Mr X contacted the Council about the barking noise from this neighbours’ property.
25. Next day the Council sent Mr X an advice letter and diary sheets to complete. Mr X returned the diary sheets a few days later.
26. The Council’s officer (Officer 1) called Mr X and advised him on the next step which would be sending a letter to his neighbours. Mr X explained his neighbours’ dog was often left in the garden notwithstanding the weather and was not called back when barking.
27. The Council sent an advisory letter to Mr X’s neighbours who own the barking dog.
28. Later in July Officer 1 talked to Mr X again. Responding to Mr X’s query the Council’s officer told him it might take a few months before the monitoring equipment can be installed.
29. At the beginning of September during a telephone conversation Mr X said the barking reduced. The Council’s officer (Officer 2) told Mr X they would close the case but Mr X could contact them again if there were any more problems in the future.
30. Mr X contacted the Council again at the end of the first week of September and in October.
31. The Council’s officer (Officer 3) visited Mr X’s property:
• At the end of October; Mr X explained the impact of the dog’s barking on his well-being. No barking was observed during this visit.
• In mid-November; no barking was observed and Mr X agreed to wait for the noise monitoring equipment to be installed.
32. Officer 3 from the Environmental Protection team contacted the Community Response team making them aware of Mr X’s concerns.
33. Officer 3 sent another letter to Mr X’s neighbours at the end of November with the dog information leaflet included.
34. The noise monitoring equipment was ready to be installed in Mr X’s property in mid-December. Mr X asked for this to be postponed.
35. At the end of December Officer 3 visited Mr X’s neighbours’ property.
36. After some further correspondence and telephone call at the end of January, another officer from the Environmental Protection Team (Officer 4) offered again to install a noise monitoring equipment.
37. At the beginning of April Officer 3 discussed with some colleagues if Mr X’s concerns his neighbours’ lack of control over their dog and the effect on him should be considered as ASB. The Community Safety Team would not get involved as the matter concerned an alleged irresponsible dog ownership. The officer from the Community Safety Team said he would contact Mr X to make him aware of this, mentioning the Community Trigger process.
38. Following the next telephone conversation with Mr X, in mid-April Officer 4 sent him diary sheets to complete and put him on the waiting list for noise monitoring equipment.
39. Based on the diary sheets filled in by Mr X, Officer 4 selected days and times when it was most likely that the dog would bark. She came to Mr X’s property on one of these days and stayed for nearly two hours. Officer 4 discussed with Mr X alternative ways of dealing with the problem, such as the possibility of taking private court proceedings under section 82 of the Environmental Protection Act 1990, carrying out a mediation or conflict coaching. No barking was heard during this visit.
40. During the next visit a week later Officer 4 stayed in Mr X’s property for nearly an hour and a half. The barking was heard once for a short period of time.
41. Mr X declined the offer of a monitoring equipment to be installed at the end of May. Mr X told me he wanted to check if the proposed visit to his neighbours would improve the situation. He also hoped for his case to be treated under the ASB legislation.
42. Officer 4 booked a visit to Mr X’s neighbours’ property for the afternoon at the beginning of June. Mr X knew about the visit and asked Officer 4 to call him when she was at the neighbours’ property so that he could get out to his garden at this time and demonstrate the dog’s reactions. Officer 4 refused as she felt it was not part of the usual process of assessing situations where statutory noise nuisance might occur.
43. Officer 4 visited Mr X’s neighbours’ property with another Council’s officer (Officer 8). When providing feedback to Mr X, Officer 4 relayed his neighbours opinions on their dog’s barking and their own actions to minimise the noise and frequency. Officer 4 and Officer 8 went over the advice provided in the factsheets to ensure all the recommended actions were completed and over the Dog’s Trust factsheets. The officers told Mr X’s neighbours they would continue to monitor the barking noise until the investigation was closed.
44. After some further correspondence the Council’s officers (Officer 5 and Officer 6) installed the noise monitoring equipment in Mr X’s property at the end of July for six days. Two of the Council’s officers (Officer 7 and Officer 8) reviewed the recordings and decided the dog’s barking did not amount to a statutory noise nuisance.
45. In mid-August Officer 4 sent Mr X a letter with the information that his case had been closed.
46. In response to my enquiries the Council said there were no complaints from other people about the dog barking from Mr X’s neighbours’ property in the last 18 months.

Complaint

47. Following Officer 4’s visit to his neighbours’ property at the beginning of June, Mr X complained to Officer 4’s manager (the Manager) about Officer 4’s partiality to the dog owners’ explanations.
48. The Manager responded a few days later, stating that there was no evidence of Officer 4’s partiality and only installing monitoring equipment can provide the evidence which would determine whether any further action was necessary.
49. After receiving a letter from Officer 4 with the information that his noise complaint had been closed, Mr X told the Manager he was not happy with Officer 4’s continuing involvement with his case after he had complained about her partiality. The Manager treated it as a stage two complaint and asked Mr X to provide a statement.
50. In the third week of August Mr X sent a stage two complaint statement.
51. The Service Director reviewed Mr X’s complaint and responded to it. He found that during the investigation of Mr X’s concerns about the barking noise from his neighbours’ property the Council followed the right process, in line with the law and the Council’s policies.

Dog barking complaints

52. As part of my enquiries I asked the Council to tell me how many complaints about the noise from barking dogs it had had in the last two years and how they had been concluded. The Council said it had 688 complaints, out of which:
• 267 cases did not need any further action following the initial contact;
• 421 cases resulted in sending diary sheets;
• In 67 cases the Council sent letters to the dog owners;
• In 23 cases the Council installed noise monitoring equipment;
• In 13 cases the Council’s officers carried out site visits;
• In five cases the Council issued noise abatement orders;
• One case resulted in a Community Protection Warning.

Analysis

Statutory noise nuisance and ASB process

53. When complaining to us Mr X listed parts of the process he was unhappy with as:
• The way Officer 4 carried out a meeting with Mr X’s neighbours at the beginning of June 2023 and her partiality to the neighbours’ case from the time of the meeting;
• Officer 4 carrying out a recording review despite Mr X’s complaints about her partiality;
• The Council’s failure to consider the excessive barking in any other way than a noise nuisance;
• Not being informed of the progress of the case;
• Failure to respond to dog welfare issues;
• Misleading information on the ASB process.
54. The evidence shows when dealing with Mr X’s noise disturbance reports the Council followed the legislation and its dog barking policy. In particular it:
• Logged Mr X’s dog barking reports;
• Advised Mr X on the methods of gathering and sending evidence;
• Sent an advisory letter to Mr X’s neighbours;
• Carried out site visits at Mr X’s and his neighbours’ properties, gathering evidence and discussing issues;
• Installed noise measuring equipment;
• Communicated regularly with Mr X;
• Reviewed the evidence, applying its professional judgement;
55. When assessing evidence sent by Mr X as well as obtained through the noise monitoring equipment at the end of July 2023 Officers 7,8 and 4 exercised their professional judgement in deciding the noise did not amount to the statutory nuisance. We cannot criticise the Council for its decision if it followed the right process when reaching it.
56. I did not find any evidence of the Council’s bias against Mr X when dealing with his concerns about the barking noise for the following reasons:
• After her visit at Mr X’s neighbours’ property Officer 4 took further action to gather evidence, which indicates she did not unquestionably accept the dog owners’ statements;
• Two other officers – Officer 7 and 8 examined noise monitoring recordings and assessed them as not amounting to a statutory noise nuisance;
• Officer 4’s manager had an oversight of the process. The investigation of Mr X’s concerns was also reviewed by the Council’s Director.
57. The Council’s records of dealing with dog barking complaints from the last two years suggest it has been acting in accordance with its policy when using its powers under the Environmental Protection Act 1990 and Anti-social Behaviour, Crime and Policing Act 2014.

Complaint handling

58. Mr X objected to the Manager’s treatment of his correspondence as a stage two complaint. He said the Manager raised a stage two complaint on his behalf. As Mr X’s communication following the Council’s stage one response was an expression of his dissatisfaction, I do not find fault with the Manager treating it as a stage two complaint. If Mr X did not want to raise a stage two complaint, he could have stated this when the Manager asked him for a stage two complaint statement.

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Final decision

59. I do not uphold Mr X’s complaint. For the reasons explained in the analysis section I did not find fault in the way the Council dealt with Mr X’s reports of the barking noise from his neighbours’ property.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman