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Luton Borough Council (19 009 486)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 24 Mar 2020

The Ombudsman's final decision:

Summary: there was fault in the way the Council considered Mr X’s complaints about noise from construction works on a property near his home. Mr X did not suffer any injustice because it is unlikely the outcome would have been different if these faults had not occurred.

The complaint

  1. Mr X complains that the Council did not take effective action to prevent noise nuisance from construction works at a residential property opposite his home between December 2018 and August 2019.
  2. Mr X says he was regularly disturbed by noise from building works at weekends, evenings and on Bank Holidays.
  3. He would like the Council to take his complaints seriously and follow the correct procedures and the law.

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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. 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 spoken to Mr X and considered all the evidence he sent me.
  2. I considered the Council’s comments on the complaint and evidence from records held by the Environmental Protection service.
  3. I have written to Mr X and the Council with my draft decision and considered their comments.

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What I found

  1. This is Mr X’s second complaint to the Ombudsman about noise nuisance during construction works at the same property.
  2. In the first complaint, Mr X said the Council had misunderstood his complaint and treated it as a complaint about a neighbour’s DIY activities rather than noise from building works. This led to a delay in starting the noise nuisance investigation.
  3. In May 2019 the Ombudsman decided the Council’s apology to Mr X, and its agreement to carry out a noise nuisance investigation, provided a satisfactory remedy for that complaint.

The relevant law

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Noise from premises or vehicles, equipment or machinery in the street may be a statutory nuisance.
  2. To be considered a statutory nuisance, it must:
  • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
  • injure health or be likely to injure health.
  1. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, install noise-monitoring equipment, or make site visits. Councils sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
  2. Councils also have the power to serve a notice under section 60 of the Control of Pollution Act specifying the hours during which construction works may be carried out at premises. The law does not impose any restrictions on hours for the carrying out of building work. But various codes of practice suggest that work should be carried out within the times 8am to 6pm Monday to Friday, 8am to 1pm Saturday and not at all on Sundays and Bank Holidays.  These restrictions relate to the noise impact from building works, not simply a ban on such works.

The Council’s procedure

  1. The Council does not have a specific procedure for investigating noise complaints. It says this would be too restrictive and it has a menu of options. For complaints about construction noise, the options include:
    • A site visit by an officer to witness activities;
    • Issuing guidance to the responsible person on working times;
    • Issuing a notice under section 60 of the Control of Pollution Act;
    • Installing noise recording equipment to capture evidence;
    • Issuing an abatement notice if it establishes there is a statutory nuisance
  2. The Council does not operate an out of hours service for noise complaints. But the Environmental Protection team can ask officers in its Neighbourhood Enforcement team to visit sites on weekday evenings and Saturdays to try to witness a noise nuisance.

What happened

  1. Between December 2018 and August 2019 building work was carried out at the house directly opposite Mr X’s home. It involved demolishing a garage and building a two-storey side extension to an existing end of terrace house.
  2. The Council had refused planning permission for the extension in August 2017. But the Planning Inspectorate granted planning permission on appeal. The conditions attached to the planning permission did not impose any restrictions on working hours.
  3. On Boxing Day 2018 Mr X made an online complaint to the Council. He complained that builders had worked on the property on Christmas Eve and Boxing Day. He said he had telephoned the Council a few days before Christmas to warn them this was likely to happen but it had done nothing to prevent it. He also complained about rubbish and household items dumped outside the property.
  4. In mid-January 2019 a team leader in the Environmental Protection service replied to Mr X’s complaint. She said the law does not prevent someone carrying out DIY work in their home on a bank holiday provided it does not happen late at night or early in the morning. She said she would arrange for an officer to inspect the site to deal with the complaint about rubbish. She told Mr X he could contact the Information Governance team if he wished to take his complaint to the next stage of the complaints procedure.
  5. In mid-February Mr X contacted the Information Governance team to take his complaint to the second stage. He said the Council had wrongly assumed the noise was from DIY. But the noise was from building works involving the use of power tools. He said this had continued over Christmas and was still happening on Sundays. He also expressed concerns about inadequate health and safety measures at the property.
  6. On 25 March Officer A, who works in the Environmental Protection team, made a site visit. He also wrote to the property owner to say he was investigating a complaint about noise from building works outside permitted hours. He enclosed an advice note which said in order to avoid complaints from nearby residents, working hours should be restricted to:
    • 8:00 am to 6:00pm on Mondays to Fridays;
    • 8:00am to 1:00pm on Saturdays;
    • No working on Sundays or Bank Holidays.

In exceptional circumstances, the Council may permit working outside these hours by prior agreement.

  1. On the same day, Officer A contacted Mr X to tell him he had visited the property that morning. He said no builders were present at the time of his visit. (When the Council later replied to Mr X’s Stage One complaint a manager said Officer A had spoken to the site manager on that visit. In fact, it seems the officer said this in error because he had misinterpreted Officer A’s case notes).
  2. On the same day a director replied to Mr X’s Stage Two complaint. She accepted he had been misinformed when he made the first complaint in December 2018. The officer had assumed the noise was from DIY rather than building works. She apologised to Mr X and said officers who log complaints would receive further training.
  3. On 1 April Mr X contacted Officer A again to report further incidents of working outside the permitted hours in the evenings and on a Saturday and Sunday. Officer A said he would send a final warning letter to the property owner. He asked Mr X to let him know if he experienced any further noise nuisance.
  4. Officer A sent a final warning letter to the property owner on the same day. He informed the owner that he had received further complaints since 25 March. He said he would start to monitor the property if he received further complaints. He said he would serve a legal notice if he witnessed builders working outside the permitted hours.
  5. On 5 April Mr X contacted Officer A to report work was carried out after 6:00pm on the previous weekday evening. Officer A replied on the same day. He said he would ask colleagues in the Neighbourhood Enforcement team to monitor the property that weekend.
  6. On the same day, Officer A contacted the Neighbourhood Enforcement team to ask if officers could visit the property after 1:00pm on the following Saturday to check if work was being done. He gave Mr X’s address and contact number.
  7. On 6 April a Neighbourhood Enforcement Officer sent an email to Officer A. She had visited the property at 1:45pm on Saturday but did not witness any noise. She said she did not contact Mr X because nothing was happening at the time of the visit.
  8. On 8 April Mr X contacted Officer A to report further incidents of working outside the permitted hours. This included two incidents of weekday working after 6:00pm and Sunday working.
  9. Officer A replied on 9 April. He said his colleagues from the Neighbourhood Enforcement team had visited on the previous Sunday but had not witnessed any building works at the time. (In fact, the Council later accepted this was an error because the Neighbourhood Enforcement team do not work on Sundays and the visit had taken place on a Saturday). He said he would ask them to visit again after 6:00pm on weekday evenings and report their findings to him.
  10. On 10 April Mr X informed Officer A that building works had continued until 10:00pm one evening.
  11. In response to my enquiries, the Council said officers from the Neighbourhood Enforcement team had visited the site on 13 and 15 April. It has no records of these visits but says evidence from the vehicle trackers confirms they went to Mr X’s road on these dates.
  12. Officer A was out of the office for a few days and replied to Mr X’s email on 15 April. He asked Mr X to continue to report any further breaches of the permitted working hours. He said he could arrange for noise recording equipment to be installed in Mr X’s home.
  13. Mr X told me the Council did not offer to install noise recording equipment in his home until June 2019. In fact, the Council’s records show Officer A made this offer on 15 April.
  14. Mr X says he had asked Council to install the noise recording equipment in the property where the building works were taking place rather than in his home. However, the Council needed to assess the impact of the noise in Mr X’s property. Mr X did not take up the offer made in April 2019.
  15. In mid-July 2019 Mr X informed the officer who was investigating his complaint that he had video recordings proving that building work had taken place outside the permitted working hours. The Council said this evidence was not sufficient to establish if there was a statutory noise nuisance. It needed to use specialist calibrated noise recording equipment and Mr X’s evidence would be of limited use in any court proceedings.
  16. Mr X says the building work was completed by August 2019 and the property is now occupied. He is no longer disturbed by noise from this property.

Analysis

  1. In March and April 2019 Officer A, and officers from the Neighbourhood Enforcement team, made four site visits. On two occasions no building works were in progress so officers could not assess whether there was a statutory noise nuisance. But there are no records of observations made during the two visits on 13 and 15 April. The failure to keep records is fault. Where there is an ongoing noise nuisance investigation, it is important to keep records in case the Council should later decide to serve a notice or issue legal proceedings. The Council also needs records to justify a decision not to take formal action.
  2. It was fault not to view Mr X’s video recordings when he told an officer in July 2019 about this evidence. Officers could not always visit the site when work was taking place in the evenings and at weekends. There was no service on Sundays when Mr X said building work regularly took place. In these circumstances, it would have been reasonable for officers to have agreed to view Mr X’s video evidence.
  3. I accept the Council could not have relied on Mr X’s video recording as evidence of a statutory nuisance. But it could have considered whether it showed builders were working on site outside the permitted working hours. If the evidence was satisfactory, it could then have considered whether to make further site visits or serve a notice on the owner under section 60 of the Control of Pollution Act 1974.
  4. I have considered whether these faults caused injustice. I cannot say the outcome would necessarily have been different if these faults had not occurred. I do not know whether the Council would have decided the video evidence supported making further site visits or taking formal action. I have also taken into account that Mr X did not inform the Council until July 2019 that he had this evidence. By then, the building works were almost complete. As the building work was completed in August 2019, there is nothing more the Council can do now.

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Final decision

  1. I have completed the investigation and the Council was at fault but this did not cause any significant injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman

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