Summary: Miss X complained on behalf of herself and other residents that the Council failed to deal with noise from a nearby recycling centre. She also complained about delays dealing with her complaint. Miss X said this caused distress and alarm, and cost her time and trouble. We do not find the Council at fault for the way it handled the noise complaint. However, we find the Council at fault for failing to inform Miss X of her legal rights, and for delays responding to her complaint. The Council has apologised to Miss X and has agreed to make a payment to her to reflect the delays.

The complaint

1. Miss X complained on behalf of herself and other residents that the Council failed to deal with noise from a nearby recycling centre. She also complained about delays dealing with her complaint.
2. Miss X said the noise caused distress and alarm to her and the other residents. She said the noise also affected her work. Miss X said she went to time and trouble complaining to, and chasing, the Council.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

7. Miss X complains on behalf of herself and ten other residents, who all live very close to the recycling centre. These ten other residents have signed consent forms for Miss X to represent this complaint on their behalf. I am therefore satisfied that Miss X is a suitable person to represent this complaint on their behalf.
8. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
9. I considered the relevant legislation and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Noise

10. Councils are required to investigate complaints of noise nuisance. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to ‘abate’ (reduce) such nuisance. To be a statutory nuisance, the law says the noise must be unreasonable and must substantially interfere with the use or enjoyment of a home, or must injure, or be likely to injure, health.
11. A council will gather evidence to establish whether or not the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped. If a council does not find a statutory nuisance, it should give the complainant information about how they may take private action in the courts.
12. A council cannot take action against itself. So, if a council receives a noise complaint about itself, it should pass the complaint to the relevant department for that department to assess and take any action necessary. In these cases, the council should inform the complainant of their right to take private legal action in the courts.

Complaint handling

13. The Council’s complaint handling policy says it aims to acknowledge a complaint within three working days.
14. The policy says the Council will send a response at stage one within ten working days from its acknowledgement. This can be extended to a maximum of 20 working days.
15. The policy says the Council will acknowledge a request for stage two within five working days.
16. The policy says the Council will send a response at stage two within 30 working days of its acknowledgement.

What happened

17. Miss X and the other residents live near a recycling centre. In March 2021, the Council partially removed a mound of earth that had acted as a sound barrier between the residents and the recycling centre. The Council removed this mound of earth so it could build new houses.
18. Shortly after this, Miss X complained to the Council about noise from the recycling centre. As the recycling centre is run on behalf of the Council, the Council referred Miss X’s complaint to the planning department.
19. In June, the Council wrote to Miss X about her complaint and about the planning proposal for a development of new homes. In August, the Council met with residents to discuss the proposed development.
20. Also in August, the Council wrote to Miss X saying it had met with the contractors (who run the recycling centre) to discuss ways to resolve the noise issues. The Council said the contractor would install temporary fencing, which would take four weeks depending on any potential supply issues. It said it would put in place more sustainable noise mitigation as part of the planning process for the new development, as this would also need planning permission. The Council apologised for any inconvenience.
21. In September, Miss X complained. She said the temporary fence had not been installed. The Council acknowledged this complaint in early October.
22. The Council sent its stage one complaint response at the end of October. It apologised for the delay in responding. It said the contractor was having problems installing the fence.
23. On the same day, Miss X asked the Council to escalate her complaint to stage two.
24. In early November, the temporary fencing was installed.
25. In Mid-November, the Council acknowledged Miss X’s request for stage two. It apologised for the delay sending the acknowledgement.
26. In early January 2022, the Council emailed Miss X saying there would be a delay in sending its stage two response. It said it aimed to respond no later than mid-January.
27. The Council sent its stage two response in early February. It apologised for the delay in installing the temporary fence, and for the distress this caused. It said the permanent fence will be installed later in the year and will plant shrubbery which will act as a noise barrier.
28. The Council apologised for delays responding to Miss X’s complaint.
29. Miss X then brought her complaint to the Ombudsman.

Analysis

Noise

30. Miss X complained that the Council failed to deal with noise from a nearby recycling centre.
31. As the Council is responsible for the recycling centre, it cannot take action against itself in terms of Miss X’s noise complaint. However, in cases like this, councils can and should assess the noise as they would for any other noise complaint and take action to mitigate or reduce the noise.
32. In this case, the Council assessed the potential increase in noise in 2021 as part of the planning application for the new development. The planning process recognised the need for noise mitigation. The Council has approved planning permission for the development. As part of this, there is a planning condition for an acoustic barrier to be installed to protect existing residents.
33. While the Council sought planning permission for the development (which includes permission for the permanent acoustic barrier), the Council’s contractors put in place a temporary fence to mitigate the noise in the interim.
34. The Council recognised the installation of the temporary fence was delayed by about a month. It says the delay was due to delays in the supply chain. This is not within the Council’s control. The Council told Miss X it would take four weeks to install the temporary fence unless there were supply issues. There were supply issues and there was a subsequent delay. I find the Council told Miss X about the delay and apologised for it.
35. Miss X complained the Council has failed to deal with the noise. I do not agree. I find the Council investigated the noise complaint as it should have. I find the Council took appropriate action to mitigate the noise in the short-term while it got planning permission for the permanent acoustic barrier, which has not yet been put in place. For these reasons, I do not find the Council at fault for the way it has dealt with Miss X’s noise complaint.
36. When the Council deals with noise complaints made against the Council, it says its usual practice is to send the complainant’s information to the responsible department for them to take action. It says its practice is to send the complainant a letter explaining this, and informing them of their right to take legal action in the courts if they wish.
37. The Council says it did not send Miss X this letter, so it did not inform her of her right to take private legal action if she wants to. I find the Council at fault for failing to inform Miss X of her right to take legal action.
38. I find this fault caused Miss X injustice because failing to inform her of her rights caused uncertainty. Since the Council received a draft of this decision, it has written to Miss X to apologise for not informing her of her legal rights. I am satisfied with this apology.

Complaint handling

39. Miss X complained about delays dealing with her complaint.
40. The Council accepts that it did not acknowledge Miss X’s complaint and request for stage two within the timeframes set out in its complaints policy (outlined above). It says the delays were due to staff shortages and high workloads.
41. I find the Council sent its stage one complaint response one day over the maximum 20 working days set out in the policy. This is not significant enough to be fault.
42. The Council should have sent its stage two response by mid-December. It actually sent its response in late February: two months late. This is fault. While the Council did explain to Miss X that its response was delayed, it only did this in January, three weeks or so after it should have sent its response.
43. The Council says the delay sending the stage two response appears to be due to waiting for information from officers who were on leave over the December holidays.
44. I find this fault caused Miss X injustice, costing her time and trouble.

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Agreed action

45. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £100. This is to reflect the injustice caused by the delay in responding to her complaint at stage two. In arriving at this figure, I have considered the Ombudsman’s published guidance on remedies. I have taken into consideration the length of the delay and that the Council told her (belatedly) of the delay. I consider a figure at the lower end of the Ombudsman’s range (usually £100 to £300) is an appropriate remedy for Miss X’s time and trouble.
46. The Ombudsman will need to see evidence that this action has been completed.

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Final decision

47. I have completed my investigation. I do not find fault with the Council’s action about the noise complaint. However, I find the Council at fault for failing to tell Miss X of her legal rights, and for delays in the complaint handling process. These faults caused Miss X injustice. The Council has apologised and has agreed to take action to remedy this.

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Investigator's decision on behalf of the Ombudsman