Summary: Mr B complains that the Council did not properly manage road repairs carried out near his home. The Council was not at fault in the way it planned the work, but was at fault because its contractor did not follow its plan. Mr B suffered avoidable noise disruption. The Council has agreed to apologise to Mr B and pay him £50.

The complaint

1. Mr B complains that the Council did not properly manage road repairs carried out near his home. Mr B says the Council did not properly consider the impact on residential properties and is unhappy because he suffered from noise disturbance during several nights while the work was completed. Mr B is also unhappy because he says the new road surface caused problems with access to his property and doesn’t allow surface water to drain properly outside his home.

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What I have investigated

2. I have investigated that part of Mr B’s complaint about how the Council managed the road resurfacing works near his home. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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

7. I have spoken to Mr B about his complaint and considered the information he has provided to the Ombudsman, including photographs and videos of the work being undertaken. I have also considered the Council’s response to his complaint and its response to my enquiries.
8. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

9. Guidance about extended working hours at road works is issued by the Department for Transport. This focuses on works in urban areas and sets out considerations that Councils should consider when planning works out of hours.

The Council’s complaints procedure

10. The Council has a two stage complaints procedure.
• At stage one, the Council will try to resolve a complaint within 20 working days.
• If this is not possible, an officer independent from the service being complained about will make contact within 10 working days to agree the issues. They will then carry out a stage two investigation and respond within 25 working days of that agreement.

What happened

11. Mr B lives on a rural road. The road by his home is used for access to a nearby business. The surface of the road had deteriorated and required resurfacing.
12. The Council contracted Company A to complete the works to resurface the road. Company A delivered a letter about the intended works to people who would be affected by the work.
13. Mr B says he suffered four nights disrupted sleep because the works were noisy and were completed through the night.

Mr B’s complaint

14. Mr B complained to the Council about the noise and disruption during the work.
15. The Council responded to Mr B at stage one of its complaints process, after the work had finished. It said it had decided the work should be done at night and apologised for any inconvenience.
16. Mr B asked the Council to consider his complaint at stage two because he said the Council should not have allowed the work to be completed at night.
17. The Council responded to Mr B at stage two of its complaints process. It did not uphold Mr B’s complaint but did apologise if work had gone on later than it would have ideally wished. The Council also offered to take up issues of excessive noise with the contractor if Mr B was able to provide evidence.

Analysis

18. The Ombudsman only looks at procedural fault in how decisions have been made. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
19. The Council says that it considered the needs of both the business and the residents that used the road. The Council decided that the works should be carried out overnight starting at 7pm in the evening because the business would be unable to operate if the work was completed in the day.
20. The Council accepts that some level of noise was unavoidable due to the nature of the work. It says it planned the work should be completed along sections of road near residential properties early in the evening wherever possible in order to reduce the impact of any noise later in the night.
21. The Council also says that the impact of the unavoidable noise would have been greater outside Mr B’s home than inside and that the level of noise would vary depending on the proximity of the machinery to Mr B’s home at any point in time.
22. The Council says it anticipated the time the work would take place directly outside any given property would be relatively short.
23. From the video evidence I have seen I am content there was some level of noise disruption caused to Mr B. This evidence shows work on two nights. On the first night work was recorded between 8pm and 10pm. On the second night work was recorded between 1am and 2am. It is also apparent that the level of noise disruption varied depending on the distance of the machinery from Mr B’s home and also whether the recording was made inside or outside.
24. I consider that while there was some unavoidable noise disruption, the Council’s plan to implement the work did give consideration to the impact on nearby residents. The available evidence shows the Council’s consideration of the impact on Mr B had its plan been implemented was correct.
25. The Department of Transport guidance has no statutory basis and is primarily intended for urban areas.
26. The Council took into account the interests of both the business and residents when it made a decision about how to complete the work. The Council also planned the work to try to minimise the impact on people living nearby. I cannot question the professional judgement as to how the work should be completed. I do not consider the Council was at fault in how it planned road repairs carried out near Mr B’s home.
27. The video evidence shows that the impact on Mr B went on until 2 o’clock in the morning on at least one night. The Council also confirmed to me that the contractor completed the works a day earlier than it had planned.
28. When the Council responded to Mr B’s later complaint, it offered him the opportunity to send in evidence of the disruption caused so it could raise any problems with the contractor. Mr B confirmed to me he did not send his evidence to the Council.
29. On the balance of probabilities, I am satisfied that Mr B suffered more noise disruption than he would have done if the contractor had carried out the work in accordance with the Council’s original intention. This was fault by the Council. Mr B suffered noise disturbance into the early morning.

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Agreed action

30. To remedy the injustice caused by the fault I have identified the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr B.
• Pay Mr B a total of £50 for the distress caused by avoidable noise disruption.

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Final decision

31. The Council was at fault by the Council in how it managed the road repairs carried out near Mr B’s home. Mr B suffered more noise disruption than he should have done.
32. Subject to further comments by Mr B and the Council, I intend to complete my investigation.

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Parts of the complaint that I did not investigate

33. I have not investigated Mr B’s complaint about problems with the quality of the new road surface. The Council has not had the opportunity to respond to Mr B’s complaints about problems with access to his property and surface water drainage when it responded to Mr B’s complaint.

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Investigator's decision on behalf of the Ombudsman