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Cheshire West & Chester Council (20 000 525)

Category : Environment and regulation > Pollution

Decision : Upheld

Decision date : 11 Mar 2021

The Ombudsman's final decision:

Summary: The evidence does not show noise and pollution suffered by the complainant has come about because of fault by the Council, and so we cannot uphold this complaint. We also cannot make findings on his complaint about unsafe working practices, or damage to his property. However, the Council should have made more effort to communicate with residents, and this has caused the complainant an injustice which the Council has agreed to remedy.

The complaint

  1. I will refer to the complainant as Mr H.
  2. Mr H complains about civil engineering work the Council is undertaking near his property. Specifically, he says:
  • the Council’s contractor has caused excess noise and pollution during the work;
  • the contractor’s working practices have been unsafe;
  • the Council has not kept him and other residents informed about the progress of the work; and
  • the work has caused damage to his property.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
  4. 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)

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How I considered this complaint

  1. I reviewed Mr H’s correspondence with the Council, the residents’ information distributed by the Council and its contractor, and the contractor’s plans and associated documents.
  2. I also shared a draft copy of this decision statement which each party for their comments.

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What I found

  1. The following chronology is intended to give a basic overview of events relating to this complaint. It is not a comprehensive account of every piece of correspondence between the relevant parties.
  2. Mr H lives on one side of a very narrow residential street. On the opposite side, there is an ancient structure. In recent years, the Council has undertaken work to restore and make safe parts of the structure, which had degraded over time.
  3. In his complaint to the Ombudsman, Mr H has referred to difficulties to local residents arising from works between 2016 and 2018. However, Mr H referred his complaint to the Ombudsman in June 2020. As these earlier events fall outside the 12mth permitted period for bringing a complaint to the Ombudsman, I will not detail them here. I will instead concentrate my investigation on the most recent period of work, which began in September 2019.
  4. Shortly before work began, the Council distributed a leaflet to residents, explaining why the work was required and what it sought to achieve. The Council’s engineering contractor also distributed a letter to residents, explaining where it would set up its operations. It said the work should take approximately six months, and provided the project manager’s name and phone number, for residents to contact if they wished.
  5. Mr H contacted a senior Council engineer, to whom I will refer as Officer K, at that time. He had noted the Council’s leaflet had referred to further potential work in future, and asked for more details on this. The officer responded quickly for which Mr H thanked him.
  6. In December 2019, Mr H contacted Officer K again. He raised some concerns about the contractor’s working practices, including the unsafe off-loading of equipment from a lorry, and the driving of construction vehicles onto the footpath on the residential side of the road. Mr H asked the Council to remind the Contractor of the proximity of residents.
  7. The Council says this email was passed to a different Council engineer, to whom I will refer as Officer M, for her to deal with.
  8. Mr H emailed Officer K again in March 2020, copying in the local Councillor. He asked the Council to note residents were suffering noise and vibration because of the contractor’s equipment. This had caused cracks in the plaster of his home, and the ingress of dust and grit. Mr H said the contractor was not being ‘courteous’, as it advertised itself. He also said a crane would come very close to his property when it was being used for unloading.
  9. The Council says it commissioned an internal investigation after receiving this message. Officer K gave Mr H a formal reply on 7 May.
  10. Officer K apologised for the inconvenience Mr H had suffered, and thanked him for patience over the years. He explained, before the recent work started, the contractor had submitted various plans and risk assessment documents, which were then independently reviewed. The Council had decided it was satisfied with these and allowed the contractor to start work.
  11. Officer K acknowledged Mr H’s concerns over several recent incidents, and noted he had spoken to the site manager about one particular incident where a vehicle had mounted the pavement. The Council said it had discussed each incident with the site manager, and was satisfied the Contractor had been properly controlling vehicle movements. However, it recognised this was taking place very close to Mr H’s house, because of the constricted nature of the site, and said the contractor had re-arranged its compound to allow easier vehicle access.
  12. Officer K reiterated the Council felt the contractor had followed its procedure, but said there was “always room for improvement”, and the reminded of the need to be considerate to residents. He said he was aware Mr H had taken photographs of his property after it had become dirty, and asked him for copies of these to assess whether the contractor had damaged the property while cleaning it.
  13. Mr H replied to Officer K on 8 May. He asked whether Officer K’s email had been prompted by his correspondence with the Councillor, or the formal complaint he had submitted.
  14. Mr H asked why the Council had agreed to allow the contractor to move vehicles over the pedestrian footway. He said there had been no supervision by the Council or its engineers and accused it of failing in its duty of care. Mr H said the contractor had re-arranged the compound for its own convenience, and that its efforts to install a barrier had been inadequate.
  15. Mr H said a delivery had taken place on 7 May without barriers, and the contractor had then washed a piece of equipment which had caused spray to fall on his property. He said the contractor’s practices breached accepted health and safety protocols, and accused the Council of supporting this. Mr H requested copies of the contractor’s risk assessment documents, and said he had reported the matter to “the local [health and safety] office and the Considerate Contractors Organisation”.
  16. Mr H wrote again to Officer K on 31 May. He reiterated his concerns about the safety of the contractor’s working practices and the inconvenience he was suffering. Mr H complained the Council had never consulted with residents and said it had not taken into account how the work would affect their properties. He said he was still waiting for the evidence showing how the Council had considered residents when it contracted the work, and that he and his wife did not feel safe in their home.
  17. Mr H asked the Council to install physical measures to protect his property, to refund a portion of his Council Tax for the current period of work and a previous one, and to make an ex-gratia payment for the damage to his property.
  18. The Council wrote to Mr H on 26 May. It said it had reviewed his recent correspondence, but declined to escalate his complaint to Stage 2, because it considered it had satisfactorily addressed his concerns. The Council said there was no evidence of maladministration.
  19. The Council reiterated its request for Mr H to submit photographs of the alleged damage to his property. It acknowledged the disruption and disturbance Mr H had suffered, thanked him for his patience and provided an update on the current status of the work.
  20. The Council acknowledged Mr H may be dissatisfied at its decision not to escalate the complaint, but explained he could approach the Ombudsman if he wished still to pursue it.
  21. Mr H referred his complaint to the Ombudsman on 29 June.
  22. Between June and October, Mr H had a further series of correspondence with the Council engineer, Officer M. I will not describe this correspondence in detail, but I will note the following key points:
  • Officer M encouraged Mr H to submit an insurance claim for damage to his property, using the procedure for which the Council had provided information.
  • Mr H noted the contractor was using acoustic blankets, in an effort to reduce the noise nuisance on residents, but said these were not effective. He complained there was effectively no barrier at all between his property and the compound.
  • Officer M explained that, during the previous works, the contractor’s compound had extended the entire length of the road, with a barrier at the edge of the footway. This had caused complaints because of the access difficulties this created; and so, in this phase, the compound had been reduced in length to allow vehicles to still use the road. Unfortunately, this now meant there was no space for a barrier between Mr H’s property and the compound.
  • Mr H reported various further incidents of inappropriate or unsafe working practices, which the Council said were brought up with the contractor.
  • Officer M and Mr H discussed the arrangements for a meeting in August 2020. During the meeting, Mr H provided Officer M with a handwritten list of concerns.
  1. Officer M emailed Mr H with a detailed response to his list of concerns on 1 September. She wrote:
  • When tendering the contract, the Council had highlighted the close proximity of residential properties to the work site. It had explained the need for care around delivery times, noise control, and separation of the work site. The Council said these matters had been discussed again during the pre-start meeting, and explained the contractor should keep in touch with local residents. After the contract had been awarded, consideration for residents and the wider public had been part of the contractor’s risk assessment and plans.
  • The contractor had employed an external consultant as project manager. Another Council contractor had been providing supervision, and Officer M had also visited the site when necessary.
  • Officer M acknowledged the Council may have been able to do more to keep in touch with residents. She said her intention was now to contact the contractor weekly, and then inform Mr H of any upcoming activities which might cause more disruption than normal. Officer M said she was also going to write to the owners of the other nearby properties, to clarify they could also contact her to discuss any concerns.
  • The constraints of the site had meant it was difficult for delivery vehicles to avoid mounting the footpath. The contractor was aware of this, and Officer M hoped the situation would improve during the next phase of the work because of a re-arrangement of the site. Officer M said she would monitor this and encouraged Mr H to continue to report any problems.
  • The current work was due to end in October. The Council could not say if, and when, any further work would begin, but there would be consultation on this and Officer M would keep Mr H informed.
  • The contractor had removed several items of equipment, which Mr H had highlighted were no longer needed.
  • Officer M say she would talk with the contractor that day about several complaints Mr H add, including a lack of site cleanliness, the positioning of a temporary toilet, and the possibility of re-arranging the site access to allow a fence outside his property.
  • Officer M had sought advice whether the Council could offer a reduction in Council Tax for the disruption suffered by residents, as Mr H had suggested. She would update Mr H once she had received a response.
  1. Officer M discussed some general points about the nature of the work and what the Council was hoping to achieve. She added she would be speaking to the contractor that day about measures it could take to suppress dust during imminent spoil removal.
  2. Mr H replied the same day. He suggested the information provided by Officer M should be shared with other residents, and said it had helped reassure him of the Council’s diligence.

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Analysis

  1. There has been extensive contact between Mr H and the Council as part of this complaint. However, I consider the issues Mr H has raised can be grouped into several broad points, each of will I address in turn.

The Council’s contractor has caused excess noise and pollution during the work

  1. Mr H complains the contractor’s work has created excessive noise and vibration at his property, as well as causing problems with dirt, dust and grit.
  2. In investigating complaints, the Ombudsman seeks to identify potential administrative fault – ‘maladministration’ – by the local authority or other relevant body. There is no formal definition of maladministration in law; but we interpret it to mean, for example, a failure to follow the procedures set down in law or local policy, a failure to consider relevant information when making a decision, or a failure to properly explain or account for a decision. We may also consider unreasonable delays, poor record-keeping, and other general administrative errors to be maladministration.
  3. However, the simple fact an authority has made a decision a person disagrees with, or that its decision has had a negative effect on them, does not mean there has been administrative fault. We cannot uphold a complaint for these reasons alone. Nor can we seek to replace the professional judgement of officers with our own. Our role is not to interfere with legitimate decision-making by the proper authorities, but just to ensure they do so without fault.
  4. In this case, there is an ancient structure in need of extensive restoration work. Unfortunately, the structure is very close to a number of residential properties, with a narrow road and footpath separating them. By my estimation, the front door of Mr H’s property is only approximately 7-8m away from the structure at its nearest point.
  5. This being the case, that the work should cause significant disruption to Mr H and other residents appears inevitable. And this remains so, even with the various mitigatory steps which have been discussed or applied at various times here, such as the use of acoustic blankets to dampen noise, and the placement of tarpaulins to suppress dust. It is clear such mitigation could only ever be of limited benefit for residents who are in such proximity to the site.
  6. This is not to say there could never be a situation where the Ombudsman would consider the Council had failed to take proper steps to prevent nuisance. But I am not persuaded there is evidence of that here. I have reviewed the construction plan, risk assessment and other related paperwork the Council has provided, and the need for consideration is a consistent theme throughout. I note also the steps the Council says it has taken to provide on-site supervision and monitoring.
  7. While I recognise Mr H does not agree these measures have been effective, I cannot say, on the evidence, he has suffered any significant avoidable nuisance, for which I could find the Council to be at fault. Rather, the evidence shows any nuisance he has suffered has arisen from an unfortunate confluence of factors outside the Council’s control – the need to undertake the work, the close proximity of residential properties, and the extremely limited space available.
  8. I do not, in any way, seek to dismiss or minimise Mr H’s experience. Again, I acknowledge the disruption he has evidently suffered from the work. And I also appreciate why Mr H seeks some form of compensatory payment – in his example, a reduction in Council Tax.
  9. The Ombudsman can, and frequently does, recommend the payment of a financial remedy to reflect a loss of residential amenity. However, this is only where we find such a loss has arisen as a direct result of administrative fault. As I have explained, I do not consider this to be the case here. As such, I do not have grounds to recommend the payment of a remedy.
  10. I should add, and regardless of this consideration, there is no mechanism whereby Council Tax can be refunded or reduced to reflect a loss in amenity. Local authorities are required by law to collect Council Tax, according to the relevant property’s banding, which is set by the Valuation Office Agency. It is not a contract for services and cannot be negotiated in this manner. The only time we may recommend a refund of Council Tax is where, through a council error, a complainant has actually overpaid their tax.
  11. I find no fault on this element of Mr H’s complaint.

The contractor’s working practices have been unsafe

  1. Mr H has complained about several incidents, where he considers the contractor has failed to apply proper safe working practices. These include a failure to separate the work site from the public footway; the fact vehicles have encroached onto the footway while manoeuvring on the site; and a failure to use a banksman to marshal works vehicles, and guide ropes when unloading deliveries with a crane.
  2. The Council has explained the lack of separation and the encroachment of vehicles has been because of the constricted nature of the site. I note the site has been re-arranged to ease some of these problems, although I acknowledge Mr H has again reported being dissatisfied with the efficacy of these measures.
  3. Either way, it is not for the Ombudsman to decide whether these are acceptable working practices. The most I could say here is that the Council has acknowledged Mr H’s concerns, and given a clear explanation why these practices have been necessary. In this respect, there is no evidence of administrative fault.
  4. The substantive question here – whether these working practices are actually safe – is instead a matter of professional judgement. As I have explained, it is not for the Ombudsman to apply his own judgement, and we can only criticise officers’ judgement where there is clear evidence it has been affected by fault.
  5. In this instance, there is a body better placed than the Ombudsman to look into these matters, which is the Health and Safety Executive (HSE). The HSE has a specific remit to investigate health and safety on building sites, and can judge whether the contractor’s working practices are safe, in a way the Ombudsman cannot. The HSE also has considerably greater powers than the Ombudsman, including that of prosecution. For this reason, I will not consider this point further.
  6. With regard to the question of guide ropes and banksmen, these requirements are explicitly listed in the contractor’s risk assessment and method statement documents. In this respect, I accept they are measures which should be adhered to.
  7. However, I am not persuaded I can make a safe finding here. Mr H has reported incidents where the requirements have not been followed; but equally, the Council says it has investigated and is satisfied the contractor is following these requirements. There is no objective evidence which would allow me to resolve this conflict. I do not dismiss Mr H’s reports, but, in isolation, the evidence they provide is anecdotal, and this is insufficient for me to make a formal finding.
  8. Taking this all together, I have discontinued my investigation of this element of Mr H’s complaint.

The Council has not kept Mr H and other residents informed about the progress of the work

  1. Mr H complains there has been a lack of information about the work from the Council and contractor, causing frustration to residents.
  2. It is not easy to quantify the flow of information to residents about the progress of the works. Nor is it simple to set a benchmark for what level of information I would consider adequate, and what would amount to administrative fault.
  3. I note there has been a not inconsiderable level of correspondence between Mr H and the two Council engineers I have referred to in the chronology, Officers K and M. With Officer K, Mr H’s initial email exchanges were brisk and cordial, although I can see their relationship became more tense later on.
  4. Similarly, Mr H had an extensive exchange of correspondence with Officer M between approximately June and September 2020. This culminated in Officer M’s detailed response to Mr H’s handwritten list of concerns, for which Mr H praised her.
  5. So, in this limited respect, I consider the Council has been reasonably open and transparent with Mr H about the work.
  6. But it appears this has come about, at least in part, because of Mr H’s personal tenacity in contacting the Council. These conversations were private, and, in isolation, do not mean the Council has been pro-actively transparent with residents in general.
  7. The Council has provided copies of general correspondence it distributed to residents. These include two newsletters, dated September 2019 and August 2020, and three other residents’ letters, one from June and two from September 2020, providing updates on the work. The contractor also distributed its own pre-commencement letter to residents in September 2019.
  8. It appears, between June and September 2020, there was a reasonable level of communication with residents. However, I cannot see any evidence of general communication between the initial newsletter of September 2019, and the next letter in June 2020. I appreciate this period included the first national UK lockdown, but the June letter refers to work which had taken place “over Easter”, and so it appears the work continued over lockdown anyway.
  9. I note, also, Officer M’s own comment in response to Mr H’s handwritten list, where she said “perhaps we have not been communicating enough [with residents] or the information we are giving out is not [what] you need”.
  10. On balance, therefore, I consider there is enough evidence to say the Council should have made more efforts to stay in touch with residents.
  11. I acknowledge there may have been times where there was little new information to provide. But, given the particularly awkward nature of the site and its proximity to people’s homes, it would have been good practice for the Council to have ensured it provided some form of regular update to residents, even if simply to acknowledge the ongoing impact of the work. This is reinforced by Officer M’s own comments in September 2020 about the efforts she now intended to make to speak to them.
  12. So, on this point I find fault by the Council.
  13. It is more difficult to discern a meaningful injustice here. Although Mr H has referred generally to the information available to residents, not just to himself, he has complained to the Ombudsman only in his own right. I cannot accept him as a representative for local residents without their formal written consent, and so this means I can only make a decision about what injustice Mr H has personally suffered from the inadequate level of communication.
  14. And, as I have said, Mr H was actually in fairly frequent communication with the Council about the work, including via the formal complaints process. So, while I consider the Council could have done better at communicating with other residents, this criticism falls away somewhat with regard to its communication with Mr H himself.
  15. But again, this seems mainly to have been because of his own efforts to pursue matters with the Council. I also note Mr H’s response to Officer M’s email of 1 September, where he thanked her for her efforts to provide detail, and said this had reassured him of the Council’s competence.
  16. Taking this together, on balance it appears likely Mr H would not have felt the need to pursue the Council as much as he did, if it had made better efforts to communicate with residents. This meant he was put to unnecessary time and trouble. This is an injustice, for which I consider the Council should offer Mr H a small financial remedy.

The work has caused damage to Mr H’s property

  1. Mr H says vibrations from construction equipment have caused cracks to appear in the plaster of his property. He also says the contractor’s efforts to clean the outside of his property, after it had become dirty, caused damage to the pointing.
  2. Questions of property damage and any liability arising from it are a matter for the Council’s insurers, and, ultimately, the courts. The Ombudsman cannot decide liability for property damage or order the payment of compensation. For this reason, I will not investigate this further.
  3. I have discontinued my investigation of this element of Mr H’s complaint.

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Summary

  1. I find no fault in Mr H’s complaint that the work has caused excess noise and pollution to his property.
  2. I have discontinued my investigation of Mr H’s complaint about unsafe working practices. This is because it would be better addressed by the HSE, and because there is no objective evidence on which I could make a finding.
  3. I have found fault in Mr H’s complaint the Council did not make adequate efforts to communicate with residents. This means he has put to unnecessary time and trouble, which is an injustice.
  4. I have discontinued my investigation of Mr H’s complaint about damage to his property, because it is a matter for the Council’s insurers and the courts, rather than the complaints process.

Agreed action

  1. The Council has agreed to offer to pay Mr H £200, within one month of the date of my final decision, to reflect his time and trouble in corresponding with it about the construction work.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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