The Ombudsman's final decision
Summary: Mr X complained that the Council failed to take adequate action to address noise caused by barking dogs at his neighbour’s property and deal with kennels built without planning permission. He said this has caused distress and affected his and his wife’s ability to sleep and work. We found no fault in the Council’s decision not to take action against the neighbour.
The complaint
Mr X complains that the Council has failed to take adequate action to address noise nuisance caused by barking dogs at his neighbour’s property. He says it has also failed to take action against a building in which the dogs are housed which was installed without planning permission. He says this has caused him and his wife distress and anxiety and has affected their sleep. It has also meant they are unable to have their grandchildren stay with them as often as they would like as they are woken by the noise in the early hours of the morning.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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) 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)
How I considered this complaint
I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.
What I found
Legal and administrative background Statutory nuisances 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 include: noise from premises; smoke from premises; smells from industry, trade or business premises.
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.
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.
In investigating reports of problems noise, councils should follow non-statutory guidance issued by the Government on “Neighbourhood Noise Policies and Practice for Local Authorities”. The guidance says that, when deciding whether a noise problem amounts to a statutory nuisance, regard should be had to several factors including: the level and type of noise and its duration; the time of day or night when the noise occurs; and the number of persons affected.
Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will use their professional judgement to decide whether a statutory nuisance exists.
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.
Abatement notices If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
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.
A person who receives an abatement notice has a right to appeal it in the Magistrates’ Court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
Section 82 of the Environmental Protection Act 1990 A member of the public can 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.
Key facts There has been extensive correspondence between Mr X and the Council since May 2021. In this section of the statement, I summarise key events but do not refer to every single contact and communication.
In May 2021 Mr X contacted the Council about noise from barking dogs at his neighbour’s property. There were several dogs housed in kennels in the back garden. The Council sent him an information leaflet and copies of diary sheets which it asked him to complete and return.
Three weeks later Mr X contacted the Council again. He spoke to an environmental health officer (EHO) who informed him the team was currently carrying out noise monitoring following a complaint by another neighbour.
Mr X also raised concerns with the Council’s planning team that his neighbour had built the kennels without planning permission.
In early June 2021 Mr X asked the EHO to install noise monitoring equipment in his property. The EHO agreed to do so once she had collected the equipment from the other complainant’s home. She confirmed there was a history of complaints dating back to 2012 which could be used as supporting background information. She said the next step was for her to listen to the noise recordings to confirm that they provided evidence of statutory nuisance. She said, “once we are able to confirm that we have sufficient evidence, we can serve an abatement notice. This is the route we would usually take with complaints relating to barking dogs etc when informal methods have not worked”.
The EHO sent a warning letter to Mr X’s neighbours and subsequently discussed the situation with them by telephone.
On 22 June the EHO sent an email to Mr X explaining she was still waiting for a noise monitoring machine to become available. Meantime, Mr X submitted further videos.
The EHO visited Mr X’s home on 29 June and also monitored from the street but only heard a few barks from a single dog.
Mr X sent the Council videos of barking dogs. The EHO visited again and heard loud barking from multiple dogs was but was unable to see the dogs because of high fences around the property. Following the visit, the EHO sent a further letter to the neighbour.
In early July 2021 the EHO wrote to Mr X saying she had discussed the case with colleagues. They considered that installing noise monitoring equipment in his property to record the noise throughout the day would be necessary to properly assess the duration of the barking and how often it was occurring. She explained the difficulty with this case was that the dogs were outside and it was difficult to see them, so the source of the barking could be questioned. She said, “when all the dogs are barking at once then the source is obvious, however when only one of them is barking at a time then the source can be disputed as there are dogs living in some of the surrounding properties”. She explained the noise monitoring machines were undergoing their annual calibration/service and as soon as they were back she would arrange the installation.
On 12 July the Council’s planning enforcement team wrote to Mr X explaining there was no need for his neighbours to apply for planning permission for the kennels because they were permitted development. Mr X argued that the neighbours had recently extended their land. But the officer explained that, even if the original boundary line was reinstated, the kennels would not exceed 50% of the total area of the curtilage of the site so met the criteria.
On 26 July the neighbour advised he had put extra soundproofing in the kennels.
On 28 July the EHO installed noise monitoring equipment in Mr X’s property. She visited the golf course at the rear of the neighbour’s garden and spoke with the manager who said he had heard the dogs barking at times. The officer was unable to see the dogs due to trees and vegetation. During her visit she did not hear any dog barking from the property but did hear dogs barking further down the road.
In early August 2021 the EHO collected the monitoring equipment from Mr X’s property and listened to the recordings. Her view was that there was evidence of nuisance from lots of dogs barking at once between 5 and 6 am and throughout the day. She discussed the case with her manager who advised obtaining witness statements from the complainants and then serving an abatement notice.
The EHO sent an email to Mr X saying “at times the barking could be considered a statutory nuisance” but, as the dogs were outside, the source of the barking could be disputed.
She said she had listened to the barking from Mr X’s home, the other complainant’s home, the street and the golf course to triangulate the noise and confirm where it was coming from. She said in her opinion, when all the dogs were barking at once, it was “quite clear” they were the neighbour’s property. But it was not so clear when only one dog was barking at a time. She explained she had been unable to see the dogs barking from any of the monitoring locations, so the neighbour could have valid grounds to appeal a notice. She said she would need to discuss the case with her manager before serving a notice.
On 23 August the EHO requested legal advice on the proposed course of action.
On 9 September the EHO sent an email to Mr X explaining she had been off sick for two weeks but had a meeting with the legal team the following day. She told Mr X the neighbour was willing to participate in mediation with him and the other complainant to try to resolve the matter. She also said she had contacted another neighbour who had advised he was not bothered by the dogs and did not wish to complain.
On 10 September the EHO discussed the case with the Council’s solicitor. The solicitor’s view was that the EHO should obtain witness statements from both complainants and complete further noise monitoring.
The other complainant informed the EHO that they did not wish to pursue their complaint any further.
The EHO visited the site again and heard barking from several different dogs. Although she was certain the barking was coming from the neighbour’s property, she was unable to see the dogs.
On 19 October 2021 the EHO and her manager met with the Council’s solicitor. The solicitor advised that it was necessary to obtain visual evidence of the dogs barking otherwise the Council could not prove beyond all reasonable doubt that the nuisance was caused solely by the neighbour’s dogs.
On 25 October the EHO wrote to Mr X explaining that the Council’s solicitor had reviewed the evidence and advised not to proceed with serving an abatement notice. She explained that an abatement notice is a civil notice and so only requires the Council to prove on a balance of probabilities that the nuisance was being caused by the neighbours dogs. But, if action was later required for a breach of the notice, this would be a criminal prosecution and the Council would have to prove beyond all reasonable doubt that the dogs heard during the monitoring were living at the neighbour’s property. The solicitor’s view was that, because the dogs were outside and not visible when barking, and other neighbours reportedly had no concerns, it would be difficult to prove to the court beyond all reasonable doubt that the neighbour’s dogs were solely responsible for the noise. The EHO explained the Council was willing to try to help resolve the issue informally by way of mediation, or Mr X could take his own action under Section 82 of the Environmental Protection Act.
Mr X complained about the Council’s failure to resolve the problem.
Analysis The Council’s investigation When considering complaints, we may not act like an appeal body. Our role is to review how councils have made their decisions. If we find no fault in the way a council has made a decision, we cannot criticise it, no matter how strongly the complainant feels it is wrong. Nor can we offer any opinion on whether or not we agree with the judgement of the Council’s officers. My role is therefore not to consider whether the noise Mr X reported was a statutory nuisance or whether the Council had sufficient evidence to issue an abatement notice but, rather, to consider whether the Council acted with fault when reaching its decision not to serve a notice.
I have found no fault in the way the Council investigated Mr X’s reports of noise nuisance. Following receipt of Mr X’s reports of dog barking in May 2021, the Council contacted the neighbour, made visits and installed noise monitoring equipment. It considered Mr X’s diary sheets and the results of the noise monitoring. This was a reasonable response from the Council and in line with its policy.
The EHO visited several times to try to witness the dogs barking. She also visited land to the rear of the neighbour’s garden and another neighbour’s property. She also considered the recordings made by the noise monitoring equipment in Mr X’s property.
Although officers were satisfied the noise at times amounted to a statutory nuisance, they were entitled to obtain legal advice on whether it was appropriate to issue an abatement notice in circumstances where they had not actually seen the dogs barking. In light of that advice, officers decided not to proceed with an abatement notice. This was a decision they were entitled to make. I appreciate Mr X’s disappointment with this, but there are no grounds to criticise officers for relying on the legal advice they received.
In the absence of administrative fault, there are no grounds to question the Council’s decision not to issue an abatement notice.
Mr X says the Council raised his expectations by saying it would serve an abatement notice.
In June 2021 the EHO sent an email saying, “once we are able to confirm that we have sufficient evidence, we can serve an abatement notice”. It is clear from this statement that the Council would only serve a notice if it had sufficient evidence to do so. The Council was entitled to reach the decision that it did not have enough evidence. This was a matter for officers’ professional judgement.
The EHO sent an email in August 2021 saying, “I need to speak to my manager before serving the notice”. As she had already explained the difficulty caused by officers not being able to see the dogs barking, I do not consider this meant she would definitely serve a notice once she had spoken to her manager as Mr X suggests. But, rather, that she was going to seek advice as to whether she was able to do so. In any event, even if the officer had said she would serve a notice, she would be entitled to change her view after obtaining legal advice.
The Council wrote to Mr X on 25 October 2021 explaining why it could not serve an abatement notice. It said that, going forward, the options were either for the Council to “remain involved and continue to try and help resolve the matter informally, for example with mediation” or for Mr X to take his own action under section 82 of the Environmental Protection Act. The Council invited Mr X to contact the EHO if he wanted to participate in mediation. He did not do so. The Council was therefore entitled to close the case. It remains open to Mr X to take action under section 82 of the Environmental Protection Act or to ask the Council to arrange mediation.
Mr X says the Council has never visited his neighbour’s property. The EHO explained that she had no legal grounds to insist that the owner of the dogs or the neighbouring houses allow her to enter their properties to see the dogs in person and, if she intended to visit, she would have to give 24 hours’ notice. I do not criticise officers for failing to visit the neighbour’s property. There is no requirement to do so and, in any event, I do not consider a visit would have altered the outcome.
Mr X says he has recently tried to report further instances of dog barking on the Council’s website but his case is showing as “cancelled”. The Council says this is a result of an online reporting form which, once it is allocated to the environmental health team and entered onto the system, then shows as cancelled on the website. The Council has agreed to review the matter so that more appropriate wording could be used in future so as not to give the impression that the complaint has not been accepted.
The planning status of the kennels On 12 July 2021 the Council’s planning enforcement team wrote to Mr X explaining there was no need for his neighbours to apply for planning permission to build the kennels as they are permitted development as they meet the criteria set out in Class E of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO).
Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application. The GPDO sets out the main types of permitted development.
Outbuildings, including kennels, are permitted development subject to certain limits and conditions including: they must be single storey with a maximum eaves height of 2.5 metres and a maximum overall height of four metres; and no more than half the area of land around the original house can be covered by additions or other buildings Mr X argued that the neighbours had recently extended the boundary of their land so, if only the original land was taken into account, the kennels would cover more than half the area of land around the house. The officer explained that, even if the original boundary line was reinstated, the kennels would not exceed 50% of the total area of the curtilage of the site and so met the criteria.
I am satisfied the Council properly investigated Mr X’s concerns about the planning status of the kennels. A planning enforcement officer visited the neighbour’s property and was satisfied the kennels met the requirements for permitted development. Accordingly, there are no grounds to criticise the Council for failing to take enforcement action.
The Council’s response to Mr X’s complaint Mr X complained to the Council’s Chief Executive on 7 December 2021. The Council responded saying he would receive a substantive response by 14 January 2022. Mr X did not receive a response.
The Council’s failure to respond to Mr X’s complaint is fault and caused Mr X frustration. He was also put to the time and trouble of having to complain to the Ombudsman.
Agreed action
The Council has agreed that, within one month, it will send a written apology to Mr X for its failure to respond to his complaint to the Chief Executive.
Final decision
I do not uphold Mr X’s complaint. However, I find the Council was at fault in failing to respond to his complaint.
I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.
Investigator's decision on behalf of the Ombudsman