Summary: Ms X and others complained about the Council’s failure to take action to prevent dust, noise and vibration nuisances from a major construction site near their homes. We have not found fault with how the Council investigated their complaints and the action it took to address the nuisances.

The complaint

1. Ms X, Mr P and Ms Y (the Complainants) complain the Council has failed to take effective enforcement action against a developer, to prevent dust, noise and vibration nuisances from the large construction site near their homes.
2. They say this failure has caused a significant detriment to their quality of life, enjoyment of their homes, health and well-being. It has also damaged their property.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. I have:

• considered the complaint and the information provided by Ms X on behalf of the other complainants, including several photographs and videos of the activities on site and the impact on the complainants’ property;
• discussed the issues with Ms X;
• made enquiries of the Council and considered the information provided;
• invited the complainants and the Council to comment on this draft decision. I consider comments received before making a final decision.

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What I found

Statutory nuisance

6. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance may include dust, noise and vibration from a construction site. To be a ‘statutory nuisance’, the matter complained about must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/ or
• injure health or be likely to injure health.

7. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather and assess the evidence. Officers will consider factors such as the timing, duration, and intensity of the alleged nuisance and use their professional judgement to decide whether a statutory nuisance exists.
8. If satisfied a statutory nuisance is happening, has happened or will happen in the future, councils must serve an EPA section 80 notice, known as an ‘abatement notice’. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
9. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. People can appeal an abatement notice but once it comes into force, a failure to comply with it is a criminal offence. It may be a defence against a notice to show the responsible person has taken reasonable steps to prevent or minimise a nuisance.
10. The Council has provided the Ombudsman with copies of its policies and procedures relating to controlling noise, vibration and dust from construction sites.

What happened

11. The following chronology is intended to give a basic overview of events relating to this complaint. It is not an account of every piece of correspondence between the relevant parties that has been comprehensive.
12. In 2016, the Council granted outline planning permission for a major housing development of up to 250 houses on a piece of land adjacent to the housing estate (the Estate) where the complainants live.
13. Prior to work starting on site, a meeting was held with senior Council officers and members where residents were reassured that modern machinery and building techniques would be employed to ensure noise, vibration and dust would effectively controlled.
14. In March 2020, construction started on site. In May 2020, several residents from the Estate reported concerns about activities on site, particularly the excessive dust emissions.
15. The Council visited the site and established the Developer was waiting for a water bowser (a mobile water tank) to arrive. Residents were given diary sheets to provide evidence of when the nuisance was occurring. Two days later, the Council checked the water bowser was on site and told the Developer to ensure it was in constant operation, including at weekends. The Council updated residents about what was being done to control the dust.
16. Despite this, the dust problem continued and Council officers visited the site four times the following week. Officers witnessed dust being created by vehicle movements at the site entrance and noted the water supply on site was inadequate. This meant the water bowsers were unable to control the dust. In response to the Council’s concerns, the Developer agreed to install a seeded boundary and fine mesh fence and increase the water supply.
17. Residents were told the Council was considering serving an abatement notice on the Developer.
18. During June and July 2020, residents continued to report excessive dust and noise coming from the site. There were also complaints about mud being left on the road.
19. In response the Council:

• asked the Developer to provide a detailed dust management plan; and
• looked into whether the mud on the road raised highway safety concerns but decided it did not.

20. The dust management plan was deemed inadequate and so the Council asked the Developer to make improvements. A site visit also confirmed that while there was no excessive dust witnessed on site at the time, the Developer was not carrying out any active dust suppression. On a later site visit, excessive dust was witnessed and the water bowser was not in operation. Because of this, the Council served the Developer with an abatement notice.
21. In response to the notice, the Developer committed to:

• carry out a dust risk assessment;
• carry out increased site nuisance monitoring; and
• increase water capacity on site so the bowsers could work continually.

22. Residents were updated by the Council and issued with more diary sheets to facilitate monitoring of emissions.
23. In August 2020, the Council visited the site 11 times to monitor the situation. Further reports of excessive noise, vibration and dust were made. Some dust was observed on a resident’s property but none elsewhere. The water bowsers were seen to be operational and dust, noise and vibration were deemed to be at acceptable levels.
24. Despite this apparent improvement, the Council continued to receive complaints. In October 2020, a senior officer visited the site and witnessed several areas of concern:

• An inadequate water supply.
• Dust mitigation measures were not being used.
• The water bowser was not on site.

25. The Council decided this was unacceptable and there was a likely breach of the abatement notice. The Developer was invited to attend an interview under caution. The Council was dissatisfied with the Developer’s response, as it was considered to be too reactive as opposed to being preventative. The Council decided to gather evidence with a view to a prosecution. This would be done over the wetter, winter months when the dust nuisance was better controlled by the weather. In March 2021, the Council started legal proceedings and continued to collate evidence that the Developer had breached the abatement notice.
26. Further complaints about dust and inadequate water were received in the spring of 2021. The Council advised the Developer of the need to properly dampen down materials on site and increase the water supply. The Developer confirmed an additional standpipe was soon to be delivered.
27. Despite this promise, further site visits in May 2021 identified continuing problems with water supply, lack of hoses and bowsers not being used.
28. The Council issued a temporary stop notice. This meant all activity on site had to stop unless dust control measures were implemented.
29. Regular monitoring by the Council took place in the following months with no significant problems identified and the water supply on site had been increased.
30. In July 2021, the Council reviewed the available evidence and, having sought legal advice, decided it was unable to proceed with the prosecution. The residents were informed of this change of position.
31. In August 2021, Mr P made a formal complaint to the Council on behalf of several other residents including Ms X and Ms Y.
32. This complaint was not upheld for the following reasons:

• Officers had proactively responded to all reports of nuisance.
• Officers regularly visited the site and the Estate to assess the nuisances.
• Residents had been encouraged to complete nuisance diaries.
• Officers had liaised with the Developer to ensure mitigation measures were put in place.
• Action was taken against the Developer in the form of abatement and temporary stop notices.
• Officers maintained regular contact with the residents and notified them of action being taken.
• A prosecution was considered but was not pursued on the basis of legal advice.
• Air quality monitors were installed by both the Council and the Developer and found omission objectives were not regularly breached.

33. The Council continued to receive complaints and monitor the site. The Council explained to residents that while site nuisances were clearly an ongoing problem, they did not constitute statutory nuisances and so it did not intend taking further enforcement action at that time. Residents were asked to report any further excessive noise.
34. In November 2021 and January 2022, residents reported damage to their properties caused by two severe storms disturbing loose materials on site. This was despite the residents alerting the Council and Developer to this possibility.
35. The Council acknowledged this damage, while unfortunate, was as a result of the severe weather conditions, and not the Council’s responsibility. The residents were advised to seek compensation directly from the Developer.
36. Frustrated by the continued nuisance, Ms X, Mr P and Ms Y brought their complaint to the Ombudsman.
37. Ms X says the brown, gritty and abrasive dust has:

• damaged property;
• prevented residents from going outside, siting in their gardens and keeping windows open, contrary to government advice during Covid-19 lockdown;
• affected sleep;
• exacerbated existing respiratory conditions;
• caused nosebleeds and eye problems; and
• caused anxiety and distress.

38. The Complainants also made repeated complaints about excessive noise and vibration from heavy machinery. Ms X says it was so severe their homes were vibrating and shaking, causing anxiety over the damage being done to their properties. Despite being reassured by the Developer that unforeseen drilling would only last two weeks, Ms X says it went on for several months.
39. Ms X says the Developer has consistently failed to properly manage the activity on site and implement mitigation measures, for example, by relocating and covering piles of building materials away from the boundary to her Estate, using water bowsers and properly monitoring and controlling emissions of dust. Instead, the Developer has failed to ensure there was an adequate water supply on site or deploy enough bowsers so keep the building materials moist and therefore unable to be caught up in the wind. She strongly believes the Council should have used its enforcement powers to ensure the Developer kept the site well managed and nuisances under control.

Analysis

40. When considering complaints about how a council has dealt with nuisance, our role is examine how the Council has responded to them. We do not come to our own view on whether the nuisance complained of amounts to a statutory nuisance.
41. The Ombudsman cannot investigate the Developer’s actions, but I have looked at the Council’s consideration of its enforcement powers and communication with the affected residents. 
42. In this case, I am satisfied the Complainants have been negatively affected by the major development. The photographs and videos I have seen clearly demonstrate its scale, proximity to the Estate and the impact of dust on their properties. I have no reason to question their reports of significant levels of noise and vibration.
43. The fact there has been an ongoing adverse impact on the Complainants is not disputed by the Council.
44. It was inevitable that there would be some disruption to the Complainants arising from the development. Ms X herself accepts this. But she feels the impact has been far greater than she expected and contrary to commitments given by the Developer and the Council during the planning application process. She does not accept the Council’s inability to effectively regulate the activity on site.
45. Ultimately it is for the Council to decide whether noise, dust and vibration have breached the acceptable levels to an extent that warrants enforcement action or caused a statutory nuisance.
46. I do not, in any way, seek to dismiss or minimise the negative experience of the Complainants. Again, I acknowledge the distress they have suffered because of the development.
47. However, the fact an authority has made a decision that 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.
48. The Council’s records show that it promptly investigated all the issues raised and took enforcement action (such as the abatement and stop notices) where it was able to do so. It also followed the procedures set out in its relevant policies relating to the control of dust, noise and vibration from construction sites.
49. The action taken by the Council is summarised at paragraph 32 above. The decision that it could not proceed with a prosecution was based on legal advice that involved a thorough consideration of the evidence and liaison between officers, residents and the Developer. The Council’s legal advice has been shared with the Ombudsman on a confidential basis, and I am satisfied the correct decision-making process was followed in reaching the decision not to go ahead with the prosecution. While I understand the complainants’ frustration and disappointment about this, it is not a matter the Ombudsman can interfere with.
50. The Council’s records also confirm it has provided the residents with regular updates about what action it has taken and provided and explanation for its decisions.
51. For these reasons, I have not found the Council to be at fault. As I have not found fault, I am unable to consider any financial redress for damage to property. This would be matter for the complainants to raise directly with the Developer.

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Final decision

52. I have not found the Council to be at fault and have completed my investigation.

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Investigator's decision on behalf of the Ombudsman