Summary: The Ombudsman will not investigate this complaint about the Council granting permission to extend normal building times due to the COVID-19 pandemic which the complainant alleges is resulting in excessive noise. This is because the Ombudsman is unlikely to determine any fault by the Council and he cannot by law question the merits of a decision in the absence of fault.

The complaint

1. The complainant, who I refer to as Mr K, is complaining about the Council’s decision to permit a builder, who has been renovating a neighbouring property for almost three years, an extension to the Code of Practice governing noisy work.
2. Mr K says the permission to extend working hours is resulting in excessive noise which in turn is inferring with his right to quite use and enjoyment of his property. As a result, Mr K wants the Council to revoke its permission.

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The Ombudsman’s role and powers

3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
6. 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’. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault or we could add to any previous investigation by the Council. (Local Government Act 1974, section 24A(6), as amended).
7. 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).

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How I considered this complaint

8. I have reviewed Mr K’s complaints to the Council and Ombudsman. I have also had regard to the responses of the Council, including its case notes, applicable legislation and Government policy. Mr K received an opportunity to comment on a draft of this decision.

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What I found

Background

9. A statutory nuisance is defined by the Environmental Protection Act 1990 and can include noise disturbances. For noise to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premises; injure health or be likely to injure health.
10. Under Section 82 of the Environmental Protection Act 1990, a member of the public can also ask a magistrates’ court to decide if a statutory nuisance exists and, if so, decide what action must be taken.
11. The Council operates a policy consistent with the national UK Code of Practice that restricts noisy work to Monday to Friday from 8am to 6pm and 8am to 1pm on Saturday. No noisy work should be undertaken on Sundays or Bank Holidays. Noisy work is defined as work using power tools or repeated hammering. Allowable work would include painting and decorating, plastering and bricklaying.
12. In May 2020, the Government published a written ministerial statement on planning and construction working hours. This statement expects local planning authorities to approve requests to extend construction working hours temporarily to ensure safe working in line with social distancing guidelines until 9pm, Monday to Saturday (however longer hours may be justified), unless there are very compelling reasons against this. An example of a very compelling reason against an extension request would be if the situation were to create a statutory nuisance.

Chronology of events

13. Since January 2018, Mr K has complained to the Council about noise from a neighbouring property which is in the course of having construction works completed. However, the Council felt the works were consistent with its policy.
14. In June 2020, the owner of the property subject to construction works applied to the Council for permission to engage in noisy works outside the normal time prescribed by the Code of Practice. He cited that the Covid-19 pandemic had delayed construction works and proposed to engage in 17.5 hours of additional noisy work outside of normal hours. The Council permitted the request.
15. Following the grant of permission, Mr K wrote to the Council to object to the decision to extend construction hours. His objections primarily related to that construction was resulting in excessive noise and that an extension of hours was likely to exacerbate this. Mr K also informed he had instructed a solicitor and will be reviewing matters as regards to a claim for statutory nuisance.
16. In July 2020, the Council responded to Mr K informing him of the Government’s latest guidance relating to construction working hours in light of the Covid-19 pandemic (see paragraph twelve). Moreover, it advised that it had reviewed Mr K’s correspondence relating to noise at the neighbouring property in addition to recordings made by Mr K. However, the Council concluded that the information provided could not constitute the existence of a statutory nuisance. In order to identify whether a statutory nuisance existed, the Council issued Mr K a noise log for him to diarise future disturbances so that its environmental health team could plan how best to gather further evidence to comply with its legal obligations. Still dissatisfied, Mr K escalated his complaint with the Council.
17. In August 2020, the Council issued its final response to Mr K. It advised that in the absence of a statutory nuisance, it was unable to revoke its permission to extend working hours at the neighbouring property. The Council noted that Mr K had completed the requested noise log and advised that the environmental health team would contact him to discuss ascertaining further evidence to support whether a nuisance was in existence. I note that the Council has now undertaken to contact Mr K to discuss a suitable time with him for the installation of noise monitoring equipment at his property.

Assessment

18. We cannot by law question the merits of a decision in the absence of fault. The Council received a request for the extension of working hours and correctly applied the latest Government guidance which cites such permission should not be refused unless there are very compelling reasons. In my view, the Council has correctly identified that one circumstance which could act to prevent such permission being given would be whether there existed a statutory nuisance, though it has been unable to conclude this in this case for the reasons below.
19. As to whether a statutory nuisance exists, the Council has a legal duty to make enquiries to identify a statutory nuisance and where determined, abate it. The Council has requested a noise log which I note Mr K has completed and the Council has now undertaken to make further inquiries by way of the installation of noise monitoring equipment. On this basis, we are unlikely to determine fault by the Council since it is in compliance with its legal duty to establish the existence of a statutory nuisance. Further, given further inquiries are imminent by the Council, we are unlikely to add to the ongoing investigation being undertaken by the Council.
20. Finally, though I recognise Mr K’s complaint is limited to the extension of construction hours, I note Mr K has instructed a solicitor with regards to the works and a possible claim for unlawful interference with his property rights. The law says we cannot investigate a complaint in circumstances where the complainant has a remedy at court unless it is unreasonable for them to undertake court action. The Section 82 procedure (which I describe in paragraph ten) is generally easy to use and given Mr K has sought legal representation, it is reasonable for him to challenge the Council’s decision on the grounds the extended works are creating a statutory nuisance in court. The restriction I describe in paragraph five therefore generally applies.

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Final decision

21. I will not investigate this complaint because it is unlikely we would find fault by the Council and we cannot question the merits of a decision in the absence of fault.

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Investigator's decision on behalf of the Ombudsman