Summary: Ms B complained that the Council failed to take effective action to control nuisance from noise, dust and out of hours working, next to her home. We could not find fault in the actions the Council took to respond to her complaints.

The complaint

1. Ms B complained that Westminster City Council (the Council) failed to take effective action to control noisy, dusty building work at anti-social hours next to her home. This caused her significant stress and disturbance.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Statutory nuisance

5. Councils have a duty to investigate complaints about noise or other pollutants such as dust which could be a statutory nuisance. For something to be a statutory nuisance, it must either:
• Unreasonably and substantially interfere with the use or enjoyment of a home, or other premises; or
• Injure health or be likely to injure health.
6. A statutory nuisance will usually need to be witnessed by an Environmental Health Officer, who will make an independent judgement of the disturbance.

Enforcement

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control includes failing to comply with any condition or limitation subject to which planning permission has been granted.

What happened

8. Ms B complained to the Council in December 2019 about a number of issues relating to the building work next door to her property. In particular she said the work was too noisy, was taking place at anti-social hours and created a lot of dust. She also said the work was in breach of the construction management plan, which was a condition of the planning permission.

Enforcement action

9. The Council responded to the planning enforcement aspect of the complaint on 30 January 2020. It explained that there were two planning permissions for the site and the construction management plan only applied to the work to the basement. The current work was taking place on the upper floors of the building and so this did not apply. It said a standard hours of work condition was applicable which required work to be done only between 8 am and 6 pm on weekdays and between 8 am and 1 pm on a Saturday.
10. The Council sent warning letters to all parties with an interest in the land reminding them of the need to to comply with the planning conditions. Enforcement officers made two unannounced visit in January 2020 but did not witness any work taking place before 8 am. They reminded the site manager of the permitted working hours and said they would continue to monitor the site.

Environmental Health action

11. Ms B complained three times on 20 January about unbearable noise and noise before 8 am. The Council contacted the building firm who provided details of all the measures in place to ensure no work took place before 8 am. Later in the day the Council rang again and the site manager confirmed the quiet times on site. A council inspector who was in the vicinity confirmed at lunch time that the site was quiet. Ms B continued to make complaints.
12. Two environmental health officers visited the site unannounced on 28 and 30 January but witnessed no work taken place before 8 am.
13. In early February Ms B complained of noise and dust. The Council visited the site but witnessed no breaches or disturbance. The site manager denied working outside the permitted hours and said there was no dust as they were not breaking concrete. The Council asked Ms B if it could visit her flat but she declined. The following day the Council called Ms B again and she said her ceiling was cracking due to the work. The Council asked to visit to inspect the damage and take pictures but Ms B repeatedly refused. The Council rang Ms B the next day and Ms B confirmed the noise was not happening.
14. Ms B continued to make daily complaints. The Council rang back each time but did not witness the noise. On 11 February 2020 officers called her from outside her property, but she said the noise had stopped.
15. The Council responded to her complaint about noise on 14 February 2020. It said she had made 24 complaints of noise and dust since 15 November 2019. On each occasion the Council had called Ms B back within the required 45 minutes to see if the noise had stopped. Officers had also visited the site on several occasions. No officer witnessed any noise so the Council was unable to take any further action.
16. Ms B continued to complain. Officers visited again in May 2020 but did not witness any noise or dust. The Council rang her in June in response to a further complaint but again the noise had stopped.
17. On 15 June 2020 the Council wrote to Ms B to say she had submitted 156 separate complaints of noise nuisance in 2020 but no statutory noise nuisance had been witnessed. It said it would not investigate any further individual complaints of noise nuisance unless she completed a noise recording sheet and returned them on a monthly basis. The Council sent her sheets on 19 June 2020 and 23 July 2020. Ms B did not return any sheets.
18. Ms B complained to the Ombudsman at the end of June 2020.

Analysis

19. I cannot identify any fault in the way the Council has responded to Ms B’s complaints of nuisance from noise, dust and out of hours working.
20. From a planning enforcement perspective, the Council has explained that the construction management plan does not apply to the work. Instead, the standard hours of work apply. Officers have spoken to the site manager and visited the site but not witnessed any out of hours working.
21. From an environmental health perspective officers have responded to a large number of complaints from Ms B, spoken to the site manager, carried out unannounced visits and asked to visit Ms B’s property. But officers have not witnessed noise or dust on any occasion. After six months I consider it was reasonable for the Council to request monthly diary sheets before taking any further action. Ms B has not returned any sheets.

Back to top

Final decision

22. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Ms B.

Back to top

Investigator's decision on behalf of the Ombudsman