The Ombudsman's final decision
Summary: Mr X complained the Council failed to respond properly to his complaints about his neighbour’s behaviour. There was no fault in how the Council investigated Mr X’s complaints about his neighbour. However, the Council was at fault when it said it would refer one of Mr X’s concerns to the community safety team and failed to do so and when it failed to inform Mr X of the outcome of its noise nuisance investigation. The Council has agreed apologise to Mr X for any frustration or confusion this caused him.
The complaint
Mr X complains the Council has failed to respond properly to his complaints about his neighbour, Mr N, over the last two years.
Mr X says this has caused him distress and frustration. He wants the Council to take suitable action to get the matters resolved.
What I have investigated I have investigated Mr X’s complaints for the period March 2021 to March 2022. This covers the one year period before Mr X complained to the Council.
I have not investigated the complaints Mr X made to the Council before March 2021. This is because we cannot investigate late complaints unless we decide there are good reasons. I can see no good reason at this stage why Mr X did not complain to us earlier.
The Ombudsman’s role and powers
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/care has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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 spoke to Mr X and considered his view of his complaint.
I made enquiries of the Council and considered the information it provided.
I wrote to Mr X and the Council with my draft decision and consider their comments before I made my final decision.
What I found
Statutory nuisance Section 79 of the Environmental Protection Act 1990 creates a duty on councils to investigate and, where identified, take action to address ‘statutory nuisances’. Under the Act, a statutory nuisance is one which: unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and / or injures health or is likely to injure health.
A statutory nuisance must be something that is happening, has happened or is likely to happen in the future.
The Act specifies different things which can constitute a statutory nuisance. Some are general, while some can only be a statutory nuisance if they emanate from a particular source. They include the state of premises, dust, steam or smell from industrial or business premises, the keeping of animals and noise. The Act does not cover leaning building objects, gates against an adjoining wall or hedge.
Anti-social behaviour Bodies including councils and the local police have responsibility for investigating and preventing anti-social behaviour (ASB).
A council will often tell a complainant to report matters of alleged ASB to the police. This is a reasonable course of action where, for example, there is an immediate risk of harm.
However, we would still expect a council to maintain accurate records of the reports and to consider what it may be able to do under its own powers.
Council powers include the power to: issue community protection notices (CPN); make a public spaces protection order (PSPO); close premises for a specified period of time; and apply to the courts for a civil injunction.
A CPN can be issued by both councils and the police. They can be issued for any type of ASB, including things which do not fall under the statutory nuisance regime.
What happened In April 2021, Mr X complained to the police about several issues relating to his neighbour, Mr N. These included matters relating to noise. The police signposted Mr X to the Council in relation to the noise issues. When Mr X reported the matter through the Council’s reporting system, he received a link to the diary logs to record the times and duration of the noise and how he was affected. The Council did not receive any logs from Mr X.
Mr X chased the matter up with the Council and in June, a Council officer sent him the diary and log sheets.
Mr X recorded a month of entries throughout July and returned the logs to the Council. Mr X’s entries were in relation to being woken up early by the noise from Mr N’s geese and cockerels.
On 3 August, an officer carried out an early morning site visit. He noted some animal and bird noises coming from different locations. Mr N arrived on site at 6:37am to let out his geese who “made several honks and cackles” for around two minutes before settling down and making no further noise. The officer said no noise nuisance was observed.
The Council received a second set of logs from Mr X on 10 August which indicated the reported disturbance was not as early as the first logs reported.
During my investigation, the Council stated that the officer also visited the site on other occasions in relation to other matters and observed the site for nuisance.
At the beginning of January 2022, Mr X contacted environmental health services again on several occasions to complain that his neighbour, Mr N: had leant five scrap gates and a number of poles against his hedge, some of which protruded around 1.5 metres above it. Mr X said he could see them from all of his downstairs windows and Mr N was being deliberately obstructive; was dumping manure against his rear garden gate; was deliberately releasing his geese and chickens very early in the morning to wake up him and his wife.
Mr X also submitted a community trigger application to the Council. In this and subsequent correspondence with the Council Mr X indicated he had complained about matters of harassment and intimidation from Mr N to the police. The Council rejected his application on various grounds and suggested the issues of the leaning poles and gates, noise from the animals and the manure heap could be matters for consideration under statutory nuisance laws.
An environmental health officer carried out an inspection and in mid-January wrote to Mr X. The officer said that after considering the physical evidence, there was no indication that the gates and poles were so intrusive that they materially interfered with Mr X’s comfort and enjoyment of his home. The officer stated they did not observe any nuisance. The officer did not provide a response in relation to Mr X’s complaints about the noise from Mr N’s geese and chickens.
At the end of January 2022, Mr X made an official complaint to the Council about the ongoing issues.
Mr X also complained that the environmental health team had asked him to keep diary logs about a manure heap which Mr N had built against the boundary hedge. Mr X said officers only had to look at it and smell it. He also said he had photographs of rats in his garden. Mr X made reference to geese roaming freely about Mr N’s land.
A Council officer responded at the beginning of March and made the following points: other than the manure heap and noise, it had previously advised him incorrectly when it said it could deal with the issues raised by Mr X under statutory nuisance legislation. Instead, issues regarding trespass, damage, intimidation and harassment would be enforced by the police or the community safety team and not the environmental health team. The officer said it would refer the matter to the head of the community safety team who would contact Mr X; in relation to the manure heap, this was not currently considered to be a nuisance. However, the Council was aware this could change which was why it had requested Mr X keep records of the accumulation and odours and the impact on him and his wife.
There is no evidence the officer then referred the matter to the community safety team.
Mr X had been in regular contact with the police over the issues of alleged harassment and intimidation from Mr N. The police decided not to take any action.
Mr X remained unhappy and asked for his complaint to be escalated. He provided additional information which showed he had reported the issues of harassment to the police and also provided details of a land ownership dispute with Mr N.
The Council reviewed the stage 1 investigation and found it had been fair and thorough. They said Mr X’s actions in reporting the issues of harassment to the police was the correct action to take. The Council said it would not take any further action and referred Mr X to the Ombudsman.
My findings
Poles and gates against the boundary hedge In its stage 1 response, the Council said it would refer the matter to its community safety team. However, the evidence provided by the Council shows the appropriate officers considered this matter without fault, including consideration of the community trigger process, negating the need to a referral at this stage. However, Mr X was caused some confusion when the Council mistakenly said it would refer the matter to the community safety team when it had already been considered by the appropriate officers. The Council has agreed apologise to Mr X for this.
Noise from geese and chickens Mr X complained about issues relating to noise from Mr N’s geese and chickens. The Council carried out site visits and determined there was no noise nuisance. However, it failed to inform Mr X of its findings. The Council has agreed apologise for the frustration this caused to Mr X and respond to his complaint.
Manure heap We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process.
Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.
The Council carried out an inspection and advised Mr X that the manure heap did not meet the threshold to be classified as a statutory nuisance. It explained its reasons for the decision to Mr X. It also advised him to keep logs so that it could reassess the situation if it changed. There was no fault in the Council’s actions.
Intimidation and harassment In his community trigger application to the Council, Mr X informed officers he was in regular contact with the police in relation to his complaints of harassment and intimidation. The Council was entitled to leave these issues to the police. There was no fault in its actions.
Agreed action
Within one month of the date of the final decision the Council should apologise to Mr X for the frustration caused by its failure to inform him of its decision in relation to his noise nuisance complaint and the confusion caused when it informed him it would refer the matter of objects leaning against his hedge to the community safety team.
Final decision
There was fault leading to injustice. If the Council agrees to my recommendations and subject to further comments by Mr X and the Council, I intend to complete my investigation.
Investigator's decision on behalf of the Ombudsman