The Ombudsman's final decision:
Summary: Mr X complained the Council failed to take proper action in response to complaints about the impact of work at a redevelopment site close to his home. The Ombudsman has found fault by the Council, causing injustice to Mr X. The Council has agreed to remedy this by apologising and making a payment to reflect the distress caused.
- The complainant, who I am calling Mr X, complained the Council failed to take proper action in response to his and other residents’ complaints about the impact of demolition and construction work at a development site close to their homes. Their complaints included site traffic management in contravention of the Construction and Environmental Management Plan (CEMP), inadequate attempts to mitigate noise and dust, and inadequate communication by the developer and its representatives.
- Mr X also complained about the Council’s handling of his complaint. He says the Council dealt with this in an unprofessional way and did not provide a substantive response to his questions or the complaint issues.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I spoke to Mr X, made enquiries of the Council, and read the information Mr X and the Council provided about the complaint
- I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.
What I found
What should have happened
- The Council is completing its “Your New Town Hall” project through a development agreement with a developer. The project involves the consolidation of existing Council office buildings and the redevelopment of surplus sites.
- In 2015, as part of this project, the Council granted planning permission for the demolition of its old council offices at Brixton Hill (the site) and its redevelopment. Mr X’s home is close to this site.
- The CEMP was submitted by the developer with the planning application and approved by the Council. The CEMP described the proposed demolition and construction programme. It set out the ways in which noise, vibration, site traffic and dust would be controlled to ensure the work was carried out in a way that minimised the detrimental impact on local residents’ amenity. It confirmed the demolition contractor would adhere to the CEMP requirements, and the plan would be regularly reviewed and revised as necessary.
- The planning conditions required the developer to submit method of demolition and construction statements for the Council’s approval before work started.
- The developer was also required to engage with local residents and set up and manage a neighbourhood construction consultation group.
- A project website was set up and the developer established the Brixton Neighbourhood Construction Forum (BNCF). The minutes of BCNF meetings were posted on the website.
- After some delay, the preparatory work for demolition of buildings on the site was scheduled to start at the end of April 2020. BNCF meetings were held in April, shortly before work began. The meetings were attended by Council officers and councillors, the developer, contractors and their representative. At these meetings:
- The developer talked about the measures and restrictions in place to minimise the impact of noise, dust and traffic movement on residents.
- Officer Y, from the infrastructure team, told residents, if they had concerns about noise, they could contact the Council’s environmental health team.
- Following the meeting, a note was added to the minutes confirming breaches of restrictions on work, such as site hours, and concerns about excessive nuisance could be reported to the Council’s environmental health team using the contact details provided.
- BNCF meetings were held in June. The preparatory work had started. At the meetings:
- The developer said the demolition of the main building was due to start on 29 June, and this process would be noisy.
- Local residents raised a number of concerns about the way in which the preparatory work was being carried out. These included their reports of site activities being in breach of CEMP not being taken seriously, issues with vehicles entering and leaving the site, intense noise and experience with dust. They asked the Council to work with, and support, them if needed.
- A councillor said it was unacceptable poor site traffic management was still being experienced and reported. The developer’s view there had been no breaches of CEMP regarding traffic management was disputed by the residents.
- A request was made by a resident for the installation of cameras on the roads where the site entrances and exits were located. A Council officer said they would look into the request.
- The residents were told the Council monitored the CEMP. As the planning authority, it had an obligation to look into reports of breaches and decide on any action or enforcement. If there were concerns about adherence to the CEMP, residents could submit these to the Council through the link on the project website. They could also raise concerns with the Council’s planning officers.
- If there were issues for the Council to consider, residents should email Officer Y who would discuss with councillors.
- On 20 July a local residents’ group, including Mr X, complained directly to Officer Y about the way in which the demolition work was being carried out. They raised a number of issues and questions, including:
- Their serious concerns about a lack of adherence to the CEMP, particularly regarding noise and traffic management. They gave specific examples of breaches, for example, traffic was not being directed through the site as set out in the plan but being directed in and out of the site entrance. And the noise mitigation measures in the plan - acoustic screening, temporary barriers and timings for noisy works - had not been put in place.
- The breaches were causing local residents significant anxiety.
- What was the Council’s role in supporting residents and what action would it take regarding the developer if it found breaches of CEMP?
- A Council planning officer responded to the residents on 3 August. The officer:
- said their concerns had been passed to the Planning Service because they had responsibility for ensuring compliance with the terms of the planning permission for the development.
- provided information about the original planning permission and approved Method of Demolition
- said the planning enforcement team had not received any enforcement enquiries from residents about the demolition work and there was no current enforcement investigation.
- The residents’ group replied to the planning officer on 14 August. They were unhappy he had not answered their questions about the procedure for monitoring and ensuring compliance with the CEMP.
- The developer wrote to residents on 24 August. It said there had been issues with the demolition work due to the building’s construction. Larger excavators would now be used with significantly reduced use of jackhammers which created most of the noise.
- On 7 September 2020 the residents’ group wrote again to Officer Y and the planning officer. They were unhappy Officer Y had not responded to their email of 20 July, and the planning officer had not replied to their email of 14 August. They said they were experiencing the very harmful impact of the demolition work throughout the day, every day. Noise and dust was not being satisfactorily mitigated or contained, there were traffic management issues and a lack of respite provision for those residents at home during the day.
- The residents contacted their local councillors. On 9 September a councillor and a senior officer from the Council met residents and visited their homes to experience the impact of the work. Councillors and council officers then had a meeting with the developer to discuss their concerns.
- The next BNCF meeting was on 23 September. The meeting was told:
- The developer appreciated there had been a great deal of dissatisfaction and apologised for the impact of the project on residents’ lives.
- There had been a number of issues about CEMP and compliance. As a result of this the Council would appoint a CEMP manager to check compliance on site.
- An independent acoustician would visit the site to review the works and suggest improvements for acoustic screening
- The developer would discuss the noisy work programme with the contractors, independent acoustician and CEMP manager. It was accepted the current programme had created some discomfort for residents.
- There were discussions about respite provision and noise cancelling headphones.
- There would be a new CEMP for the next stage of work – construction of the new building. This was published on the project website.
- From 30 September the Council appointed CEMP manager began regular site inspections and reports which were published on the project website. The Council said in its response to our enquiries this was an unusual step for it to take. It added this additional level of monitoring to make sure the developer adhered to the CEMP and limit the impact of the development on local residents.
- The residents raised further concerns with the Council in October about communication and engagement, mitigation measures, respite provision and the level of noise outside of the noisy work periods. In November, councillors and residents had a site visit and meeting with the developer and contractor.
- Mr X continued to correspond with the Council regarding the new CEMP, concerns about the method of noise measurement and other issues.
- On 26 November Mr X told the Council the intervention had had an excellent effect – at least so far. The noise level was tolerable and site management had improved. But he was unhappy about the Council’s initial response to the concerns about the noise and other impacts of the work, and its response to his questions. He wanted to make a formal complaint about this. He and an officer in the Council’s complaints team exchanged emails about his complaint in December.
- In its final complaint response in January 2021 the Council said:
- Officers had tried to answer all his correspondence but acknowledged due to the specialised nature of some enquiries and responses, more clarity may have been useful at times to ensure wider understanding. It accepted there had been an error in a link provided to certain documents.
- Officers had sought to address concerns regarding the CEMP
- It relied on the professional judgement of officers, particularly in services such as planning, when making assessments and reaching conclusions
- Breaches of planning control and issues with noise and other nuisance should be reported to the Council’s planning enforcement and public protection teams.
- Mr X brought his complaint to us in February 2021.
Analysis - was there fault by the Council causing injustice?
Council’s response to Mr X’s and other residents’ concerns about the work
- Redevelopment of the site, close to their homes, inevitably affects Mr X and other local residents. The CEMP set out the measures the developers agreed to put in place to mitigate the detrimental effect of the work on local residents. This impact was likely to be greater if the CEMP was not followed.
- The Council says it does not have a statutory duty to proactively monitor compliance with a CEMP or adherence to planning conditions. But it has a duty to investigate alleged breaches of planning control and complaints about noise and nuisance.
- Although local residents may not have made complaints directly to the Council’s planning and protection teams, they raised their concerns at the BCNF meetings in June, which were attended by council officers. They complained about failures of compliance with CEMP, in particular regarding traffic management (also raised by a councillor), intense noise and also dust. I have not seen any evidence the Council took action to investigate these concerns.
- The residents were also told they could contact Officer Y directly with their concerns, which they did on 20 July. There is no evidence action was taken by the Council to look into these concerns.
- My view is the failure to take prompt action to investigate the clear concerns and complaints raised at the June BNCF meetings and by email in July 2020 was fault by the Council.
- I consider the evidence shows, once the councillors became involved in September, the residents’ concerns were then taken seriously. The Council then initiated effective action to address the issues with the developer and the contractor.
- In my view the Council’s failed to properly and promptly investigate the concerns raised in June and July 2020. This caused Mr X avoidable distress and worry about whether the Council would take any action in response to his and the other residents’ complaints about the work.
- Mr X says the Council did not provide a substantive response to his questions about a number of issues. My view is the Council replied promptly to his correspondence and questions. I appreciate Mr X was not satisfied with the way in which his questions were answered but it is not our role to investigate, or decide on, the quality of the Council’s responses.
- The evidence I have seen shows the Council considered Mr X’s complaint and provided a final response allowing him to refer his complaint to us if he remained unhappy.
- I do not consider there was fault by the Council in its handling of Mr X’s questions or his complaint.
- To remedy the injustice caused by the above faults, and within four weeks from the date of our final decision, the Council has agreed to:
- apologise to Mr X for its failure to take action to investigate the complaints about the work when they were raised in June and July 2020.
- pay Mr X £150 to reflect the avoidable distress and worry this failure caused him.
- This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.
- I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will take the above action as a suitable way of remedying the injustice.
Investigator's decision on behalf of the Ombudsman