Summary: The complainant says the Council did not properly consider using its powers to stop noise nuisance from the complainant’s neighbours and failed to consider a complaint without delay. The Council recognised failings and offered a payment. The Ombudsman finds the Council at fault and recommends a greater remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, says when dealing with her complaint of noise nuisance the Council failed to:
• Properly consider and use its environmental protection powers when dealing with the noise arising from works undertaken close to Mrs X’s home;
• Investigate the complaints without delay or engage formal action to reduce or remove the nuisance;
• Ensure officers shared accurate information with Mrs X leading them to mislead her about what the Council had done and intended to do to manage the site.
2. Mrs X wants the Council to recognise this led to her living with statutory nuisance for longer than she would otherwise, resulting in lost wages, avoidable stress and anxiety for her and her family. The Council offered Mrs X £150 in recognition of the inconvenience caused but Mrs X ways this is not proportionate to the harm caused by the Council’s failings.

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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. If 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. In considering this complaint I have:
• Contacted Mrs X and read the information presented with her complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, guidance, policy, and practice;
• Shared a draft of this decision with Ms X and the Council and reflected on any comments received.

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What I found

6. Councils have powers to control statutory nuisance under the Environmental Protection Act 1990 (EPA) through issuing Abatement Notices and, where noise arises from construction, under the Control of Pollution Act 1974 (COPA).
7. Under Section 60 of COPA the Council may serve a notice setting out the hours within which construction, demolition or renovation works may take place. If someone carries out work outside of the times set out in the Section 60 Notice the Council may start legal proceedings which may lead to a fine.
8. Section 61 COPA gives the Council authority to issue a Prior Consent Agreement (Consent) which sets out when someone may carry out noisy works. If it issues a Consent agreement a council my not issue proceedings under either the EPA or COPA while the Consent remains in force and the contractor complies with its terms.
9. The Council’s practice on receiving complaints of noisy construction work is to visit the site and advise the site manager of the permitted times for noisy works. The Council will then monitor the site. If there are any further complaints Council officers have discretion on whether to issue a notice and take further action.

What happened

10. Mrs X’s neighbours carried out construction work at their home which Mrs X says resulted in construction noise at unreasonable times of day including early morning and at weekends and bank holidays.
11. The Council says permitted times for noisy works are 8.00am to 6.00pm Monday to Friday, and 8.00am to 1.00pm Saturdays. It does not allow working on Sundays and public holidays.
12. Mrs X complained about the noise in April 2019, and an Environmental Health Officer visited the site the same day. Five days later Mrs X complained about noisy work continuing outside permitted times including work on Good Friday and Easter Saturday which lasted until 6.00pm.
13. The Council sent a letter on 1 May 2019 to the construction company and the property owners setting out the permitted hours of work. In response the Council received assurances work would not take place outside permitted hours. However, further noisy work took place and Council’s officers again spoke with the construction company and owners. The Council’s officer told Mrs X the Council had given her neighbours and the construction company ‘final warnings’. Mrs X took this to mean that any further breach of the permitted hours would lead to service of a formal notice. However, the Council says its officer had used the term as a figure of speech. The Council had not given any formal final written warning. Its letter to the construction company dated 1 May 2019 said the Council’s policy is to issue a Section 60 Notice should its informal approach prove unsuccessful.
14. In June and July 2019 Mrs X complained about further noisy works outside permitted hours. The Council’s officer dealing with the case had left the Council and a different officer now took over. This Council officer visited the site. On 23 July 2019, the Council officer issued a further letter setting out the permitted hours for noisy work, and again said failure to comply may lead to a Section 60 Notice.
15. On 31 July 2019 following further complaints the Council issued a Section 60 Notice on the contractor. The covering letter told the contractor if they breached the notice the Council had a duty to start legal proceedings.
16. The Council’s officer spoke with Mrs X about conducting an out of hours visit and using noise recording equipment. On 12 August 2019, the Council installed noise recording equipment in Mrs X’s home. However, the equipment failed to work. The Council’s officer visited on 14 August 2019 but did not detect any out of hours noise. The Council’s officer planned three further visits that month, but Mrs X said she would be away on holiday and so did not agree to further visits.
17. Although Mrs X believed the work had begun winding down, further disturbances occurred out of hours. Mrs X raised this with the Council in emails of 12 and 19 August and 30 September 2019. The Council did not respond until 18 October 2019. It had not offered any further out of hours visits or recording equipment.
18. The Council says the neighbours did not work on the project continuously but intermittently. Mrs X says she telephoned the Council often but could not get through. Mrs X says the Council did not provide weekend or out of hours contact numbers. Mrs X say she had to constantly contact the Council to follow up her concerns. She took time off work to record the noise for the Council. Despite the Council’s informal contact Mrs X says construction work still began at 6.30am and took place on bank holidays and late on Saturdays.
19. Mrs X complained about the Council’s handling of the noise complaint. At both stage 1 and 2 of its complaints’ procedure the Council did not uphold the complaint. However, in October 2019 the Council recognised it had delayed its response. The Council apologised and offered to pay Mrs X £150 as a gesture of goodwill. Mrs X rejected that offer and said it did not recognise the loss of earnings, impact on her health or the telephone calls and emails she had sent. The Council says the payment recognised the inconvenience of having to follow up the error with a complaint.

Analysis – was there fault leading to injustice?

20. My role is to decide if the Council decided on action having before it all relevant information and whether it did so without avoidable delay. Where it acts with fault I must consider if that caused an injustice and if so, what the Council should do to address that injustice.
21. The Council followed its standard procedure in first taking up the concerns about construction noise with the neighbours and the contractors informally. The Council received the first complaint in April 2019. By 1 May 2019 it had issued a letter reminding the contractors of the permitted hours. The letter continued by warning failure to comply may lead to the Council issuing a Section 60 Notice.
22. The Council recognises its officer misled Mrs X into believing the next step would be issuing a Section 60 Notice. Although the Council had written to the contractor on 1 May 2019 the Council says that did not represent a final warning. I find the Council acted with fault in misleading Mrs X into believing it had issued its final warning and a Section 60 Notice would follow any further breaches.
23. It is unclear why the Council believed it could not follow up the letter of 1 May 2019 with a Section 60 Notice given it had continued to follow up breaches informally with the contractor. The letter of 23 July 2019 differs only as far as it says the Council has had several further complaints. However, it is for the officer to exercise his or her professional judgement on whether a further letter may achieve the intended result rather than issuing a Section 60 Notice. Therefore, I find the Council acted with fault in not explaining more clearly the reasons for not issuing the Section 60 Notice until 31 July 2019 and raising expectations of speedier action.
24. To gather the information needed to support legal proceedings used to enforce the Section 60 Notice, the Council installed recording equipment. It failed to work properly. Technical faults will occur. However, the Council did not follow up this failure with replacement equipment in August 2019 or any time after that. I have seen no evidence of site visits, or further gathering of information to support legal proceedings between August and October 2019. That left Mrs X to experience further uncontrolled out of hours noise. The Council recognised its failure. I find the Council failed to properly follow up the Section 60 Notice without delay.
25. Residents complaining about noise can expect some inconvenience in helping the investigation because often this will mean Council officers visiting their home and setting up and collecting recording equipment. Where we find a council has put complainants to avoidable inconvenience, we may recommend a payment recognising the inconvenience. It is clear here Mrs X experienced avoidable delay and inconvenience plus living with out of hours noise for longer than she might had the Council followed up the Section 60 Notice more quickly. Mrs X also experienced difficulties in contacting Council officers and following her complaint through the complaints’ procedure.
26. In deciding on what to recommend the Council should do to put right the injustice I must consider if the Council has offered a payment equal to the injustice suffered. I believe it did not.

Recommended and agreed action

27. To redress the injustice arising from the faults identified in this investigation I recommend, and the Council agrees to, within one month of my final decision:
• Apologise to Mrs X;
• Pay Mrs X £300 in recognition of the failure to offer further recording equipment, or action to reduce the noise experienced and the delay in dealing with her complaint.

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Final decision

28. In completing my investigation, I find the Council at fault causing an injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman