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Redcar & Cleveland Council (18 010 990)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 21 Mar 2019

The Ombudsman's final decision:

Summary: Mr and Mrs X complain that noise from a Council-installed lift in their neighbour’s house disturbs their sleep. The Ombudsman does not find fault with the Council.

The complaint

  1. The complainants, who I refer to here as Mr and Mrs X, complain about the Council’s installation of a lift in their neighbour’s house. They say the noise from the lift disturbs their sleep.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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

  1. I considered the information and documents provided by Mr and Mrs X and the Council. I spoke to Mrs X about the complaint. Mr and Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
  2. I have considered the relevant legislation, statutory guidance and policies, set out below.

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What I found

  1. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to ‘abate’ (reduce) such nuisance. To be a statutory nuisance, the law says the noise must be unreasonable and must substantially interfere with the use or enjoyment of a home, or must injure, or be likely to injure, health. The law includes vibrations within the definition of a noise nuisance.
  2. Councils are required to investigate complaints of noise nuisance. A council will gather evidence to establish whether or not the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped. Failure to comply with an abatement notice can result in court action and a fine.
  3. There is no fixed point at which noise becomes a statutory nuisance. Councils will rely on professional environmental health officers to gather and assess evidence of noise and decide if a statutory nuisance exists. To do this, officers may, for example, ask the person complaining of nuisance to complete and return diary sheets detailing the noise.
  4. Officers may also set up recording equipment in the complainant’s home. Officers will normally visit the complainant’s home and/or a nearby property to identify any noise and its source. In assessing the noise, officers will take account of several points such as what is causing the noise, the local area, time of day, and frequency and duration of the noise.
  5. Councils must also consider how the noise affects the average person, who may not share the specific circumstances of the complainant. In practice, this means councils have some discretion deciding whether noise is a statutory nuisance. The primary aim of any action is to modify the behaviour of the perpetrator. However, a council cannot take action against the perpetrators of noise without robust evidence.
  6. Councils’ procedures for dealing with noise complaints typically include contact with both parties, use of diary sheets, officer visits, and/or use of recording equipment. If people return diary sheets the case officer will investigate, unless the sheets show there is unlikely to be a nuisance. Further investigation normally includes letters to both parties but may be ‘case specific’. Councils will close a case if further ‘reasonable investigation’ does not show a statutory nuisance exists. On closing a case, Councils should give the complainant information about how they may take private action in the courts.

Notifying neighbours of planned works

  1. A ‘party wall’ is wall common to two adjoining buildings or rooms. The Party Wall Act 1996 sets out the rights and responsibilities that people have when doing certain works to their home. This Act is for people who intend to carry out building work which involves building a new wall or external wall at the boundary with a neighbouring property, structural alterations to a party wall, or excavating near a building.
  2. The Act says that if proposed building work involves any of those areas listed above, the building owner needs to serve a notice on the adjoining owner(s) at least two months before the works begin.
  3. The Act says that if the proposed building work does not involve any of those three areas of development, the Party Wall Act does not apply.
  4. The Town and Country Planning Act 1990 sets out the law around planning and development. Section 55(2)(a) of the Act says that ‘development’ does not include “carrying out … maintenance, improvement or other alteration … which (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building” unless the floor space is increased by a certain percentage.

What happened

  1. Mr and Mrs X own their home, which is a semi-detached house. The other side of the semi-detached property is occupied by council tenants.
  2. In February 2018, the Council installed a wheelchair lift in the neighbouring property, to meet the neighbour’s mobility needs (the neighbour has disabilities).
  3. A week later, Mr and Mrs X complained to the Council. They said the lift had been fitted to the party wall, and so the Council should have informed them the work was being carried out. They said the lift was behind their headboard in their bedroom and created noise.
  4. Ten days later, the Council responded to Mr and Mrs X’s complaint. It said the lift was installed to enable the neighbour to access the upstairs of the property. It said the lift had been installed in the only possible location within the property. The Council said that the lift had not been attached directly to the party wall, so it was not required to consult with Mr and Mrs X.
  5. The Council said it was waiting for the installers to say whether there was an alternative location to put the pump (which worked the lift) to reduce the noise and vibrations.
  6. In March, the Council and the company that installed the lift visited the neighbour’s house to look at solutions to the noise problem. The company recommended moving the pump outside the house.
  7. The pump was moved in April.
  8. In June, Mr and Mrs X complained to the Council about noise when the lift was being used. The Council sent Mr and Mrs X diary sheets to complete for three weeks.
  9. The Council visited Mr and Mrs X at home, and then held a case review meeting. During this meeting, there was a discussion about whether the connection of the lift to the ceiling could be the cause of the noise. The Council contacted the lift engineers for further advice.
  10. In July, Council officers and two lift engineers from the company went to the neighbours’ house. Engineers made adaptations to the pump, but this only made a small difference to the noise. The engineers agreed to move the pump system inside an outbuilding. The Council told Mr and Mrs X if this did not work then an additional acoustically-lined housing unit would be put over the pump.
  11. The pump was moved. Mr and Mrs X said this did not affect the noise levels from within their home.
  12. The Council then arranged for an acoustically-lined box to be put on top of the unit. The engineer said noise had been somewhat reduced by moving the unit inside, but agreed that there was still a hum. The Council said it would keep Mr and Mrs X informed of what it would do next.
  13. In mid-July, the pump was boxed-in with plasterboard and thick insulation. Mr and Mrs X said there had been no change in the noise levels.
  14. The Council held another case review meeting, looking at other options. Council officers visited the properties twice after this meeting.
  15. Mr and Mrs X told the Council there was a slight improvement and reduction in noise, but said the lift was being used more often.
  16. In August, the Council spoke with Mr and Mrs X, who agreed that it would be useful to install noise monitoring equipment. This was installed less than a week later.
  17. The Council held another case review meeting, and discussed other possible sources of the noise. That day, the Council visited the neighbour and agreed that the pipes vibrated. The Council then put acoustic material on the pipes, but this appeared to enhance the noise, rather than reduce it.
  18. Mr and Mrs X said noise was the same.
  19. The Council held another case review meeting. It sent Mr and Mrs X diary sheets to fill out.
  20. At the end of August, the Council installed noise monitoring equipment in Mr and Mrs X’s house for a week.
  21. Also at this time, the Council insulated the party wall between the neighbour and Mr and Mrs X’s properties to reduce noise. This work was completed a week later, in early September.
  22. The Council wrote to Mr and Mrs X. It said the noise recordings showed a reduction in noise. It said there was insufficient evidence to show that the noise constituted a statutory noise nuisance, and so the Council had closed their noise complaint.
  23. The Council said it had investigated and completed extra works to the neighbour’s property to reduce noise. It told Mr and Mrs X that they could take private or civil action if they remained unhappy with the noise, and told them how to do this.
  24. In October, Mr and Mrs X complained to the Ombudsman.
  25. In November, the Council met with Mr and Mrs X. They said the noise levels had improved but there was still a problem because the neighbour used the lift a lot throughout the night, which disturbed their sleep.
  26. The Council offered to insulate and redecorate Mr and Mrs X’s side of the party wall (both floors). Mr and Mrs X agreed to the bedroom being soundproofed. The Council says Mr and Mrs X have not asked for the downstairs to be soundproofed because the primary issue was the effect of the noise on their sleep. The insulation work was to be completed by the end of December.
  27. The insulation work started in January 2019 and was completed shortly after.
  28. The Council told the Ombudsman that it had spoken to Mr and Mrs X at the end of January. It said Mr and Mrs X said they were now able to sleep through the night without being disturbed by the noise.
  29. The redecoration has been done. The Council offered Mr and Mrs X the option to have a further noise test, but they declined.

Analysis

  1. Mr and Mrs X say the Council did not tell them a lift was being installed, they found out from the neighbour. They say the Council should have told them.
  2. The lift is not attached to a party wall. Because of this, as I have said in paragraphs 11 to 13, the Party Wall Act does not apply. So, the Council did not have a duty under this Act to tell Mr and Mrs X it was going to install the lift.
  3. As I have said in paragraph 14, the Town and Country Planning Act 1990 says that ‘development’ does not include “carrying out … improvement or other alteration … which affect(s) only the interior of the building”. In this case, the Council carried out an improvement or alteration to the neighbour’s home which only affected the interior of the building.
  4. For this reason, the Council did not have a duty under this Act to inform Mr and Mrs X it was going to install the lift.
  5. The Council did not have a duty to inform Mr and Mrs X, so I cannot find fault with the Council.
  6. Mr and Mrs X accept that the Council did everything it could to reduce the noise, but at the time I discussed their complaint with them (early January 2019), they said the Council’s actions had not reduced the noise sufficiently.
  7. I find that the Council took prompt action at every stage. I find no fault in how the Council investigated the possibility of a statutory noise nuisance.
  8. The Council says it has spoken to Mr and Mrs X since the insulation works completed in late January. It says they told the Council they can now sleep through the night, which is the outcome they wanted. This is positive.
  9. Mr and Mrs X complain that the insulation works were not completed by the end of December 2018, as the Council had said.
  10. The Council says that the contractor it had arranged to carry out the work let the Council down, and failed to carry out the works when promised. I have seen that on finding this out, the Council acted very promptly and arranged a second contractor to carry out the work.
  11. This work appears to have been carried out promptly and to Mr and Mrs X’s satisfaction.
  12. I do not find fault with the Council for this delay. This is because the Council arranged for a second contractor to carry out the works very promptly. This is evidence of good practice.

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Final decision

  1. I have completed my investigation. There is no evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman

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