Summary: Mrs X complains the Council has failed to take action to stop noise nuisance, vibrations and air pollution from nearby roadworks. The Council is carrying out regular monitoring of the effects of the roadworks. It is also using its regulatory powers to ensure best working practice. The Council has used its professional judgement to determine there is no basis to take formal action.

The complaint

1. Mrs X complains Council has failed to take action to stop noise nuisance, vibrations and air pollution as a result of nearby major roadworks.
2. Mrs X says the noise and vibrations have had a detrimental impact on the health and wellbeing of herself and her family.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation, 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;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Mrs X lives near to the A14 which is undergoing major improvements. The work is being carried out by Highways England (HE). Mrs X says she has experienced noise nuisance, vibrations and air pollution as a result of the works.
7. The works were approved by a government minister under a Development Consent Order (DCO). This order includes conditions about the works. The Council is responsible for ensuring compliance with the conditions.
8. The Council also has some control over the works as it is responsible for the Section 61 agreement. Section 61 of the Control of Pollution Act 1974 is an application to the Council for consent to carry out works. The Council is able to include conditions about how the works will be carried out including hours of operation. HE recently withdrew an appeal against the conditions in the Section 61 agreement set out by the Council.
9. Mrs X does not think the Council is doing enough to prevent noise and vibrations as a result of the major roadworks. She told me work started in March 2018. She says the problems were evident from July 2018 when she began complaining. She told me that between October 2018 and January 2019 the works were further away from her property giving some respite. However, she says the noise and vibrations since then have caused distress to her and her family. Mrs X does not feel the Council is doing enough to protect her.
10. HE is required to carry out noise and vibration monitoring while the works are ongoing. The data produced is provided to the Council for it to assess compliance.
11. Mrs X submitted complaints to the Council on 27 July, 31 July, 2 August and 3 August. The Council treated these reports as a stage one complaint under its complaint’s policy and responded to Mrs X on 8 August. The Council’s response said the noise data provided by HE for the three nights of 25-27 July showed levels were exceeded once between 11 pm and midnight on 26 July.
12. The Council responded to Mr X’s concerns about the lack of acoustic barriers saying some were in use but there were health and safety issues meaning they cannot be used when loading material onto lorries. It said HE was trying to minimise the noise but certain machinery was required to complete certain operations. It accepted one vehicle was being used with the reversing beepers on but this should not happen.
13. In response to her concerns about vibrations the Council said the vibrations on site were caused by a compaction roller. It says the levels predicted for this type of work were predicted and not expected to exceed guidance levels..
14. The Council said the works have to be carried out a night as road closures cannot happen during the day. It acknowledged the works were affecting local residents and it was working with HE to minimise the impact. It said the one breach of noise levels did not warrant further enforcement action from the Council.
15. Mrs X responded disagreeing with the Council’s position. She said the investigation was superficial and the data collected has not followed accepted methodologies. She said the Council has failed to seek its own hard evidence and is relying on information provided by HE which is not independent.
16. Mrs X submitted further complaints on 16 and 17 August. In response the Council confirmed HE installed vibration monitors on 22 August. Mrs X made a request for technical date about the vibration monitoring. The Council says HE responded to her request.
17. The Council does not have an out of hours noise monitoring service, so it commissioned Cambridge City Council to carry this out on its behalf. Cambridge City Council visited the site to investigate the night works on 22, 23 and 24 August.
18. The Council provided a stage two complaint response in September 2018. The Council responded to Mrs X’s complaint the data was being “fiddled”. It said there was no evidence to support this and its role was to collect and analyse data without any presumption of guilt. It said it applies evidential and public interest tests to decide appropriate action in line with its enforcement policy.
19. It said it was working closely with a local action a group and HE had set up an engagement group. It understood Mrs X was involved in both groups. It said there were a number of joint working groups with representatives from the Council, HE and the action group including a noise group which Mrs X is a member.
20. It said it continued to work with HE to investigate and resolve matters and ensure compliance with legal obligations. It noted HE had breached the DCO because it did not install air quality monitors prior to the commencement of works. It said HE acknowledge it could not now fully remedy this but the Council had insisted HE install the monitor and help develop a model to estimate baseline air quality levels.
21. It said the Council’s enforcement policy commits officers to provide advice and support to remedy legal breaches in the first instance and to only take enforcement action when it is expedient to do so and there is a serious or deliberate breach with no credible attempt to remedy the breach. It said there was no realistic prospect of a successful court action at that time based on the evidence available.
22. It said the Council was balancing the need for the A14 to be upgraded as soon as possible to help improve noise and air quality with the need for this work to be done sensitively, legally and with the minimum practical impact on Mrs X and her neighbours.
23. In December 2018, the Council appointed a firm of specialist consultants to undertake monitoring and assessment on its behalf. The consultants have carried out their own compliance monitoring which supplements, and can be compared to, the data collected by Highways England. The consultants carried out four visits between April and mid June 2019. They produced a report of all monitoring visits and fed back results to Highways England. This monitoring has resulted in the identification of some infringements and suggested improvements to minimise the impact on local residents including Mrs X. The consultants continue to work with the Council to monitor the site.
24. Representatives from the Council met with Mrs X and other residents in November 2018. As well as listening to noise recordings, Mrs X told the Council she had a video which showed the contractors were not carrying out the works using best practical means. Best practicable means can used as a defence against statutory nuisance actions. It requires contractors to work in the best way possible to minimise nuisance.
25. The Council asked Mrs X and another neighbour to make a witness statement about the nuisance. The Council said this would be required if it were to take formal action in court regarding any breach of the Development Consent Order or in a statutory nuisance case. Mrs X has not provided a witness statement but the other neighbour has. The Council says it would not be able to take any formal action in court due to insufficient evidence.
26. Mrs X and other residents commissioned an independent noise specialist to produce a report. The report was shared with the Council. Its Environmental Health Office reviewed the report but did not identify anything that led it to change its approach in this case.

Analysis

27. Mrs X complains about noise nuisance, vibrations and air pollution as a result of major infrastructure works on the A14. She says the Council has not taken action as a result of the nuisance experienced. She says the Council has not dealt with her complaints on an individual basis and has not properly considered the impact on her and her family.
28. I am satisfied the Council did respond to her initial noise complaints in July and August 2018. I appreciate Mrs X disagrees with the methodology used by the Council to monitor the noise and vibrations but it is not the Ombudsman’s role to come to a conclusion on whether an actionable nuisance has occurred. The Council has investigated and monitored the situation. It has then used its professional judgment and decided there is insufficient evidence to warrant formal enforcement action. The Council has explained its enforcement procedure and why it does not straightaway move to formal action.
29. Mrs X says the Council has never visited her property to accurately assess the impact on her. The noise and vibrations from the road works do not just affect Mrs X. As an action group has been set up by local residents it is clear other residents are affected. While there will be times when it is necessary for a council to visit an affected property to properly assess the nuisance, I am not persuaded this is necessary in this case. The noise and vibrations affect an area larger than Mrs X’s property. Monitoring points are being used by HE and the Council. It is likely these monitoring points will be situation closer to the roadworks than Mrs X’s property and so are likely to provide higher readings. I consider it appropriate for the Council to use readings from set monitoring points and so I am not persuaded there is fault by the Council in not visiting Mrs X’s property to monitor the nuisance.
30. The information provided shows the Council has, and continues to, monitor the situation. The Council responded to her initial complaints in August 2018. It commissioned another local authority to visit at night aThe Council appointed consultants to monitor noise and vibrations resulting from the works. The consultants have produced detailed reports of each monitoring visit and have highlighted any issues with Highways England who are actually completing the works. This data has also been compared with monitoring data produced by Highways England as part of the conditions of the Development Consent Order for the works.
31. Mrs X raised the issue of the failure to provide air quality data prior to the commencement of works. The Development Consent Order placed a condition on Highways England to provide two months of data prior to the works starting. The fault lies with Highways England and not the Council. There was no requirement for the Council to see the data and discharge the condition so I am not persuaded there is fault by the Council in relation to this issue. However, it is working with Highways England to ensure some comparison data is provided to ensure the other condition regarding monitoring is carried out.

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Final decision

32. I will now complete my investigation as there is no evidence of fault causing an injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman