Summary: Mr D says the Council failed to mitigate noise nuisance caused by building works. The Ombudsman has not found any evidence of fault by the Council regarding the noise issue. The Ombudsman has completed the investigation and not upheld the complaint.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council failed to mitigate noise caused by building works to the highway near his home in 2019.

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What I have investigated

2. I have looked at Mr D’s complaint about the actual works in 2019. I have not investigated the decision to grant planning permission for example which took place in 2017.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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

6. I have considered the information provided by Mr D. I asked the Council questions and examined its response and supporting papers.
7. I have written to Mr D and the Council with my draft decision and considered their comments.
    

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What I found

What happened

Background to the complaint

8. In 2017 a planning application for works to a viaduct near Mr D’s home was submitted. In 2018 and early 2019 the Council sent out information to residents about the planned works. Because the land was owned by Network Rail some works (such as piling) could only happen at night when trains stopped running. It also had a noise management plan, as part of the planning condition. The plan included mitigation measures such as pre-advising residents about night works and limiting only essential activity to night works.

Matters I have investigated

9. On 17 September 2019, the Council wrote to residents, including Mr D, about essential night time works with heavy machinery. The Council sent a further letter at the end of the month giving dates for November and December when night time works would happen and the type of noise that may occur. Works overnight happened on 5 October and the Council carried out noise monitoring which confirmed the only severe noise was due to piling work for a limited period.
10. On 24 October Mr D complained to the Council about the works and questioned if they were needed. He said financial redress should be paid to him. Further overnight works took place in October and November. On 3 November Mr D chased up his complaint. The Chief Executive responded on 11 November. He apologised for the disruption caused by the works but explained the Council was restricted by Network Rail as to when operations could take place. The Council would not be paying any redress.
11. Further overnight works took place in November. At the start of December, the Council wrote to residents explaining when work would happen over the Christmas holidays.

What should have happened

12. When the Council has building works planned which cause disruption to residents it takes account of its Pitching the Message guidance on how to notify residents. Where there is likely to be a high impact on residents the Council should notify them in writing about the works and hold public information events.
13. The Council can carry out works it deems essential at night where this is the only option available. Where noise is unavoidable the Council should have a noise mitigation plan setting out how to minimise noise disruption. It should also carry out a noise monitoring exercise once works commence to check if the noise is as expected or whether additional mitigation measures are needed.

Was there fault by the Council

14. I have not found any evidence of fault by the Council regarding the works. It was restricted as to when the noisiest works (piling) could take place at the site because of an active rail line. As such the Council took the required steps in its policies and procedures to manage the noise and notify residents about what to expect. It issued letters to residents and held public information events. It also had a noise management plan in place and carried out noise monitoring which showed the noise levels were as expected. I appreciate Mr D disagrees with the Council’s actions and its decision to carry out the work. He feels the Council should have done the work at different times. However, the Ombudsman will not question the merits of such decisions in the absence of fault. I am satisfied the Council followed its policies and procedures.

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Final decision

15. I have completed the investigation and not upheld the complaint.

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Parts of the complaint that I did not investigate

16. I have not looked at matters prior to 2019 because Mr D’s complaint is about the works that took place in 2019. Furthermore, the decision to grant planning permission took place in 2017 and the Ombudsman expects a complaint to be made to him within 12 months.

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Investigator's decision on behalf of the Ombudsman