Staffordshire County Council (18 016 479)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 28 Jun 2019

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to deal appropriately with excess noise from a Household Waste Recycling Centre. There was no fault in the Council’s actions.

The complaint

  1. Mr X complained the Council failed to deal appropriately with excessive noise from a nearby Household Waste Recycling Centre (HWRC).
  2. Mr X says this is having a detrimental effect on his health and his business.

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The Ombudsman’s role and powers

  1. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  2. 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)
  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 spoke to My X and considered his comments.
  2. I made enquiries of the Council and considered the information it provided. This included correspondence between the Council, Mr X and the Borough Council, noise diary sheets kept by Mr X, independent noise assessments carried out by a third party, site inspections by the Council and the minutes of contract meetings.
  3. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

  1. This investigation concerns the actions of the County Council who has responsibility for operating the HWRC. The County Council does not have responsibility for investigating environmental issues such as noise nuisance. This is the responsibility of the Borough Council. The actions of the Borough Council do not form part of this investigation.

The Environmental Protection Act 1990 and noise nuisance

  1. The Environmental Protection Act 1990 states councils, in this case, the Borough Council, must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance”. The noise complained about might be loud music, barking dogs 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, who will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. Officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has actually occurred.
  4. If an officer decides that 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. The Act states it is a defence to enforcement action “to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance”.
  6. ‘Best practicable means’ involves having regard to local conditions and circumstances, the current state of technological knowledge and financial implications.
  7. It is also open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.

What happened

  1. The County Council uses a contractor to run a number of services on its behalf, including its HWRCs.
  2. Mr X part owns and runs a leisure business (the Business) near an HWRC. The Business has been operating for over 30 years. The HWRC has also operated for many years, but previously was much smaller in scale.
  3. The issues Mr X has raised were originally complained about by another representative of the Business, Ms Z. Mr X became directly involved with communications with the Council around May 2018.
  4. Some years ago, the contractor applied for planning permission to alter two of the conditions attached to the HWRC’s original planning permission. These were in connection to the type of waste the HWRC could accept and its hours of operation.
  5. Ms Z, Mr X and other people connected with the Business submitted eight objections to the application. The objections all said the noise from the HWRC early in the mornings was unacceptable.
  6. The application went to the Planning Committee. The planning officer’s report detailed the objections received and dealt appropriately with the issue of noise from the HWRC and neighbour amenity.
  7. The Planning Committee granted permission to alter the terms of the two conditions. One of the conditions restricted the HWRC’s hours of operation. The condition said no operations were allowed at the HWRC before 7:30am and the HWRC was not allowed to operate compacting machinery or move the recycling skips before 9am.
  8. Two years later, the contractor submitted another planning application to increase the hours of operation. The Council said the contractor must submit an independent noise assessment before it would consider the application. The contractor withdrew the application.
  9. In March 2018, Ms Z emailed the Council. She complained operatives at the HWRC were creating excessive noise by using machinery to move the skips around at 8am on a Sunday morning. This was in breach of the planning condition.
  10. A Council officer, Officer B, replied the next day and said they would raise the issue with the contractors. The contractors did not resolve the matter and so at the beginning of May 2018, a meeting at the Business was held with Mr X, Ms Z, Officer B and a representative of the contractors.
  11. At the meeting, it became apparent Mr X and Ms Z had a number of issues with noise from the HWRC. The ones relevant to this investigation included the use of machinery outside the permitted hours, noise associated with compacting waste and noise associated with dragging and dropping skips.
  12. Mr X and Ms Z requested an acoustic wall was constructed between the HWRC and the Business. Officer B explained the Council had looked at this previously on another site and it was not a viable solution. Officer B said the Council would work with the contractor to identify ways to reduce the noise made by the compacting machine and how the skips were moved as this would likely be more effective in terms of noise reduction and cost effectiveness.
  13. A number of actions were agreed at the meeting including trialling the use of mattresses to muffle the noise during the compaction process, changing the way the skips were moved, commissioning an independent noise assessment and exploring the viability of an acoustic fence.
  14. At a contract meeting on 8 May 2018 between the Council and the contractor, the contractor stated they had taken measures to ensure work was carried out within the permitted hours only. However, Officer B noted the HWRC continued to operate outside permitted hours when they made site visits on 15 and 16 May. On 21 May, Ms Z emailed the Council and said the noise was worse.
  15. On 21 May, the Council and the contractor held another contract meeting. At this, the contractor said it had given site staff a copy of the permitted hours and training would be provided for existing and new staff.
  16. On 29 May, a noise assessment was carried out by an independent assessor. This stated noise levels over 10dB were likely to be an indication of a significant adverse effect. The monitoring recorded noise levels were at 16dB with the most significant noise coming from the waste compactor.
  17. On 30 May, Mr X and Ms Z stated the site was now working within the permitted hours.
  18. At the beginning of August 2018, the Council and contractor held another contract meeting. The minutes record Officer B said the contractor should consider a reduction in payload to reduce noise. The contractor said they would not. It was confirmed the contractor was using mattresses when appropriate with the waste compactor to reduce the noise.
  19. On 17 August, the Council held a meeting with Mr X and Ms Z at the Business. An email specifying the actions from that meeting was sent by the Council to Mr X and Ms Z. This recorded the mattresses were not viable and that other ways of reducing the noise from the compactor were being considered and would be trialled. It was agreed another meeting would be held in one month’s time
  20. At the end of August, the contractor arranged for the compactor manufacturer to visit the site to assess the machine to see if changes could be made to reduce the noise.
  21. At the beginning of September, the Council emailed Mr X and Ms Z and said the contractor would trial alternative ways of operating the compactor to see if this would reduce the noise. These included compacting smaller amounts of waste more frequently, closing the compactor’s claw when compacting and investigating whether there were rubber components that could be used with the claw.
  22. On 5 September, the Borough Council contacted the County Council and said it had received a noise complaint from Mr X and Ms Z.
  23. On 9 October, the Council held a meeting with the Borough Council, the contractor and Mr X and Ms Z. The notes from the meeting record actions for the contractor to trial other compaction methods with the compactor manufacturer and for the contractor to inform the County Council when it was ready for more noise assessments to be carried out.
  24. On 15 October, the Council responded formally to the complaint Ms Z had made in March. It upheld the complaint as it agreed the results from the noise assessment were “a likely indicator of an adverse impact”. The Council said it would “continue… to try to reduce the noise causing concern as far as reasonably practicable”.
  25. Officer B looked further at the viability of an acoustic wall but was advised this would not necessarily provide the noise reductions Mr X and Ms Z wanted. The contractor also said they were unable to change the attachment on the compactor because of cost.
  26. On 30 October, the Borough Council informed the County Council it was starting a statutory noise nuisance investigation.
  27. In November, a second independent noise assessment was carried out. This recorded noise levels at 18dB which were higher than the levels recorded in May and likely to be an indication of a significant adverse effect. The assessment recorded that when waste was tipped without the compactor in use, noise levels were -5dB, indicating no adverse impact.
  28. In January 2019, the compactor manufacturer visited the site and recommended the compactor’s power was turned down to mitigate against the noise. It was noted that the noise levels reduced considerably as a result of this. A third independent noise assessment was carried out in April and this recorded noise levels of 0dB which meant the levels were consistent with a low impact on the environment.
  29. The Council discussed fitting a restrictor to the compactor so an operator could not alter the power of the machine. The manufacturer had originally informed the contractor this could be done; however, it later changed its advice and said fitting a restrictor would not be a practical long-term solution.
  30. In May, the machine was fitted with a ‘white noise beacon’, a device to counteract some of the noise from the machines and vehicles at the HWRC. The Council says this will reduce the noise levels in the long-term. In addition, several repairs will be carried out on the machine to assist in the reduction of noise.
  31. In its response to my enquiries the Council said “the Council has taken an active role in working with all parties to support the resolution of the complaint... The Council has participated in meetings; has liaised with all parties; has conducted monitoring visits on the site; has escalated the matter internally and externally with [the contractor's] senior management; has escalated the complaint above ‘normal’ complaint management procedures; has worked with colleagues in multiple departments to resolve and investigate a number of issues and requests made by [Mr X and Ms Z]; has suggested actions to our contractor, and has used contract management protocols to work towards resolution with [the contractor]”.
  32. I spoke to Mr X in May. He said the current changes in working practice had resulted in improvements in the levels of noise. He also said the Council was visiting regularly each week which was positive but he was concerned noise levels would increase again once the Council stopped making frequent visits.

My findings

  1. The contractor operates the HWRC on behalf of the Council. Therefore, I can consider its actions as if they were the Council’s.
  2. There is no fault in the Council’s actions. The evidence demonstrates it took appropriate action to try to reduce the noise from the HWRC once it received
    Ms Z and Mr X’s complaints. It met with them and, together with the contractor, trialled a number of different methods of working. The contractor also took appropriate actions to ensure its employees met the requirements of the condition relating to permitted hours of work. Mr X said this issue of working outside permitted hours was resolved by the end of May 2018.
  3. When the Borough Council began an investigation into the levels of noise from the HWRC, the Council and contractor continued to take steps to resolve the issues with noise from the HWRC. An independent noise assessment showed these efforts were successful and there was no adverse noise impact from the HWRC. Mr X has also said the noise levels have improved. Although this took several months to resolve, there was no significant delay in the County Council’s actions.
  4. It will be the decision of the Borough Council to decide, if it finds evidence of a statutory noise nuisance in the future, whether the County Council’s actions constitute a best practicable means defence to enforcement action.

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Final decision

  1. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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