Transport for London (18 001 394)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 11 Dec 2018

The Ombudsman's final decision:

Summary: Mr B complained that Transport for London has failed over four years to resolve the problem of noise and vibration from the train tracks to the rear of his property. Although TFL has frequently taken a long time to respond to Mr B on the issues he has raised, I cannot find fault with the action it has taken.

The complaint

  1. Mr B complains that Transport for London [TFL] has taken no effective action to mitigate excessive noise and vibration from trains running to the rear of his property. It has also delayed over a three- year period in reaching its recent conclusion that it can do nothing.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

  1. Under the Environmental Protection Act 1990 Councils must look into complaints about noise that could be a statutory nuisance. The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
  2. For a noise to count as a statutory nuisance it must do one of the following:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
    • Injure health or be likely to injure health
  3. The statutory nuisance must be witnessed by an Environmental Health Officer and he/she will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has actually occurred.
  4. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
  5. But those served with an abatement notice can appeal to a Magistrates Court. In certain cases, people who have used the best practicable means to stop or reduce the noise nuisance may be able to use this as grounds for appeal or a defence if prosecuted. Best practicable means involves having regard to local conditions and circumstances, the current state of technological knowledge and financial implications.
  6. Members of the public can bring their own case to the Magistrates Court and ask it to serve an abatement notice.

What happened

  1. The rear of Mr B’s property backs onto a railway line. In February 2014 Mr B complained to TFL about noise and vibration from trains affecting his property. He said the noise levels were quite severe in his garden and house and vibration affected the light fittings.
  2. TFL visited Mr B’s house in March 2014 and arranged for some gardening work to be done to remove ivy and prune trees. TFL carried out sound testing in October 2014 during the rush hour. The report identified noise was higher in the garden at a maximum level of 75 decibels compared to 51 inside. TFL considered the noise levels were unexceptional but said they would do some track investigation to see if any improvements could be made. In January 2015 TFL said it was due to carry out some track grinding in April, but soundproofing was not possible due to a lack of room and risk of it falling.
  3. TFL said, in August 2015, that barrier construction was not possible. In October 2015 TFL apologised for the delay in responding to Mr B. It explained there were no guidelines or noise levels it was required to stay within. The World Health Organisation suggests guideline levels but there were not binding and TFL could not achieve them with its current infrastructure. When building new lines it is required to do all it can to minimise noise using modern construction methods which were not available 100 years ago. TFL engaged a noise mitigation consultant to see if it could identify some further sound-proofing measures. Mr B offered for works to be done at his cost.
  4. In December 2015 TFL gave Mr B a copy of a report with some recommendations of work to try in respect of sound mitigation. Five months later TFL discussed the options with Mr B. The noise consultant had suggested lining the walls closest to Mr B’s property with waterproof acoustic absorbent panels, or to increase the height of the wall. TFL concluded it would not be practical to cover the walls in the material. It had tested this approach at another location but noise levels had not reduced.
  5. The consultant then looked at raising the height of the wall with trellising and vegetation. It arranged to visit Mr B in July 2016. It concluded that, as the wall was already covered in significant vegetation, any further trellising was unlikely to reduce the noise further. Low-level vegetation, which could have an effect was not practical due to the proximity of the track to the boundary wall.
  6. As the night tube was starting in 2016, Mr B asked for TFL to carry out a further noise survey. The Council did so in November 2016. This showed noise levels were consistent with those recorded in 2014. It concluded that even though background noise level within the property was high, the noise of trains was still clearly perceptible inside. It identified that the vibration might be the result of rail roughness and the condition of the rails should be assessed.
  7. In January 2017, TFL said it was due to carry out some track-grinding in May or June to smooth out the rails and hopefully reduce the noise and vibration levels. It said barriers and vegetation did not offer significant reduction in noise or vibration levels.
  8. In September 2017 it said there was currently little more it could do but it would continue to assess noise mitigation options. It had drawn up a list of its requirements and was putting it to the market to see if any companies could produce an effective and workable solution. It was confident the track was in as good condition as it could be.
  9. Mr B was unhappy with the response and contacted a more senior officer within TFL. She responded in November 2017. She summarised the action the Council had taken to date and concluded there was nothing more it could do at present. She said the track passing near Mr B’s property is in good condition without faults.
  10. She said TFL were still looking at long term solutions to reduce airborne noise and vibration levels. One option was installing noise barriers and other was to reduce the speed of night trains. It said it was evaluating both options and if appropriate they would be trialled at various priority locations. If the trial was successful at reducing noise it would decide where and when to roll out the measures.
  11. Mr B said he wanted TFL to try increasing the height of the wall and attaching vegetation. TFL said, based on its experience, it did not think high-level vegetation or an increased wall height would provide effective noise mitigation
  12. TFL replied in February 2018 saying that its view was that low-level dense vegetation did reduce noise levels but was not possible at his location and that based on its engineers’ expertise high-level vegetation did not make a difference. It was concentrating on areas where noise levels in people’s homes were the highest, where track work was urgently required and where the highest numbers of complaints were generated. There was nothing more it could do at present near his property.
  13. Mr B complained to the Ombudsman in April 2018. In response to my enquiries it said the track near Mr B’s property has an S-bend and the noise is generated by the curving of train carriages through the bends. It says reducing airborne noise is more challenging than reducing ground-borne vibration. It recently trialled a rail damping system on a different section of track but unfortunately it did not reduce noise levels. It says it is still working on other solutions and will keep the situation under review.

Analysis

  1. In respect of train noise, there are no statutory noise levels with which TFL has to comply. It is for a local council to reach a judgement as whether a noise is causing a statutory nuisance and if so to consider whether it should serve an abatement notice requiring improvement. However, an abatement notice can be appealed on the grounds that a person or organisation has used the best practicable means to reduce the noise, even if it has been unsuccessful.
  2. In respect of Mr B’s complaint, he has complained directly to TFL about the noise and vibration. Over the past four years TFL has taken steps to assess the noise and find a solution. On the basis of the information provided I consider that TFL has throughout the period been very slow to respond to Mr B’s communications and he has put much effort into chasing up officers for a response. However, TFL has undertaken two sound reports to assess the problem. It has then done various track works and considered other soundproofing solutions via a noise consultant. Unfortunately, none of these measures has been successful or practical to do. Its current position is that there is nothing more it can reasonably do.
  3. Beyond the time take to reach this view, I cannot find fault with the action TFL has taken. I understand Mr B’s frustration at the lack of a positive solution after so long but I cannot change TFL’s decision. It has explained that given the narrow space, the age of the railway and the curve of the tracks there is nothing more it can do. It has explained that high-level vegetation is ineffective in reducing noise, there is no room for low-level vegetation, soundproofing material does not work, and sound barriers are not practical. Mr B may disagree with the decisions, but I cannot find fault with the way they were made.

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Final decision

  1. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.

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Investigator's decision on behalf of the Ombudsman

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