Epping Forest District Council (18 013 509)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 18 Jun 2019

The Ombudsman's final decision:

Summary: There was no fault in the way the Council decided Transport for London did not need to apply for prior consent to carry out noise generating activities near Mr B’s home. The Council has not received any statutory nuisance complaints and has no power to deal with Mr B’s other concerns about the works because they do not require planning permission and the Council is not the Highways Authority.

The complaint

  1. Mr B complains that the Council has failed to take any action to control the works that Transport for London (TfL) is carrying out near to his home. His concerns include:
    • De-stabilising of the land and damage to his home;
    • Dust nuisance;
    • Nuisance from noise and vibration (particularly when works are carried out at night);
    • The impact of over 6000 HGV movements on local residential roads over a 24-month period; and
    • Highway safety concerns from HGVs reversing onto the road.

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What I have investigated

  1. I have investigated the action the Council has taken in relation to the first three bullet points in paragraph one above. The last section of this statement explains why I have not investigated the rest of Mr B’s complaint.

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The Ombudsman’s role and powers

  1. 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)
  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:
    • considered the complaint and discussed the issues with the complainant;
    • made enquiries of the Council and considered the comments and documents the Council has provided;
    • considered Transport for London’s comments on the complaint; and
    • given the Council, Transport for London and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation

  1. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) allows certain development without the need for planning permission. This is ‘permitted development’. Permitted development rights are subject to limits and exclusions, but when a proposal falls within the limits of development allowed by the Order it will not need planning permission.
  2. Schedule two, part 8 of the Order refers to railways. It states that “Development by railway undertakers on their operational land, required in connection with the movement of traffic by rail” is permitted development.
  3. The Party Wall Act 1996 provides a framework for preventing or resolving disputes in relation to party walls, party structures, boundary walls and excavations near neighbouring buildings. A building owner proposing to start work covered by the Act must give adjoining owners notice of their intentions. Adjoining owners can agree or disagree with what is proposed. Where they disagree, the Act provides a mechanism for resolving disputes. Councils do not have any role in managing or enforcing the Act.
  4. The Environmental Protection Act 1990 says that where a complaint of a statutory nuisance is made to a council by a person living within its area, it must take such steps as are reasonably practicable to investigate the complaint.
  5. The following matters constitute statutory nuisances:
    • Any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
    • Noise or vibration emitted from premises so as to be prejudicial to health or a nuisance;
    • Noise or vibration that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street.
  6. Where it is established that there is or is likely to be a statutory nuisance, the Council must serve an Abatement Notice, requiring that the nuisance is abated. Failure to comply can lead to prosecution in the Magistrates’ Court.
  7. Councils can serve a notice under section 60 of the Control of Pollution Act 1974 to control the noise from construction works. It allows councils to put specific restraints on construction and demolition activities such as working hours or the type of equipment to be used. A person who intends to carry out works may apply to the council for prior consent under section 61. The application should include the way the works will be carried out and any steps proposed to minimise noise from the works. Failure to comply with either a section 60 notice or section 61 consent can lead to prosecution in the Magistrates’ Court.

Background and analysis

  1. Transport for London (TfL) has started carrying out work to strengthen a railway cutting (elevated land next to tracks) which is near to the rear boundary of Mr B’s home.
  2. Mr B complained to the Council about the impact of the works, and in particular that the Council was not supporting residents or challenging the work which TfL was carrying out.
  3. The Council told Mr B that the works are permitted development which TfL has the right to carry out. It said that it had no control over the works because they are permitted by legislation.
  4. I am satisfied that the works do not require planning permission and the Council is not responsible for investigating Mr B’s concerns that the works may de-stabilise the land and damage his home. TfL has confirmed that when excavation work is required near an adjacent structure, it will follow the procedures set out in the Party Wall Act. I have found no evidence of fault by the Council here.
  5. A document provided by TfL to Mr B says, "During the works the local residents are likely to experience negative impacts such as parking nuisance, visual impacts, noise pollution and vibration due to construction activities in close proximity to residential buildings, and dust/debris pollution. It was agreed with the Local Council that no Section 61 consent was needed for this work”. Mr B considers the Council should have required TfL to apply for section 61 consent.
  6. The Council says it would not request a section 61 application for works which will take place during core hours, which are 7.30am to 6.30pm Monday to Friday and 8am to 1pm on Saturdays. It says that TfL has confirmed that the main stabilisation works will take place within these hours and it will be ensuring best practicable means are employed to minimise noise. The Council was entitled to decide that TfL did not need to apply for section 61 consent. I have found no evidence of fault here.
  7. TfL has confirmed that it will need to carry out some work during the night, but that before commencing these works, it will obtain section 61 consent.
  8. The Council has not received any complaints about nuisance from the works. Should Mr B or any other resident be unreasonably disturbed by noise, dust or vibration, they can contact the Council who will have a duty to investigate.

Final decision

  1. I have completed my investigation and do not uphold Mr B’s complaint. There was no fault by the Council.

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Parts of the complaint that I did not investigate

  1. I have not investigated the Council’s actions in relation to Mr B’s highway safety concerns, or the impact of increased HGV movements on residential roads. The Council is not the Highways Authority and the works do not require planning permission and so it has no power to deal with these matters. Mr B may wish to contact the Highways Authority, Essex County Council, about his concerns.

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Investigator's decision on behalf of the Ombudsman

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