Summary: Miss X complained the Council failed to investigate or take appropriate action in relation to noise nuisance from refuse collection vehicles early in the morning which disturbed her sleep. The Council’s failure to investigate Miss X’s complaint of noise nuisance amounts to fault. This fault has caused Miss X an injustice.

The complaint

1. The complainant, whom I shall refer to as Miss X complains the Council has failed to investigate or take appropriate action in relation to noise nuisance from refuse collection vehicles early in the morning which disturbs her sleep. Miss X states the Council has changed its collection times so that crews now collect from her street/ the surrounding streets from around 5am up to three times a week.

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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)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X;
• Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory nuisance

5. The Environmental Protection Act 1990 gives councils the power to take action about statutory nuisances in their area. The Act includes noise as a statutory nuisance. If someone living in a council’s area complains about a statutory nuisance, the council must ‘take such steps as are reasonably practicable to investigate the complaint’.
6. For the issue to count as a statutory nuisance, it 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. The Council’s website states there when it receives a noise nuisance report it will:
• contact the person to discuss the problem;
• ask them to keep a diary so the Council can see how long and how often the noise occurs and how it affects the person’s life at home;
• contact the perpetrator to warm them a complaint has been made;
• try to gather evidence such as ear- witness accounts and recordings
• serve fines if someone is found guilty of failing to comply with a Noise Abatement Notice.

Refuse and recycling collections

8. Councils have a duty under the Environmental Protection Act 1990 to collect household waste and recycling from properties in its area. The collections do not have to be weekly and councils can decide the type of bins or boxes people must use.
9. Residents were expected to store the bins on their property and only present them for collection by 5:30 am on their collection day. During the COVID-19 pandemic the Council amended this to require residents to present their household waste and recycling before 5am on their collection day.

What happened here

10. Miss X complains the collection crews now collect the waste and recycling from her street very early in the morning and disturb her sleep. She states that as there are separate collections for the houses and flats the collection crews visit her street between 5am and 5:30am on two, sometimes three mornings each week.
11. Mrs X states the layout of her street means the collection vehicle has to accelerate hard to reverse up a slope to the flats and then make a number of manoeuvres to come back out. This, together with the noise of the machinery in loading and unloading the bins, wakes her up and she is often unable to get back to sleep. Miss X states this disruption to her sleep is causing her anxiety and distress.
12. In June 2020 Miss X complained to the Council about being woken up by the collection crews at 5:30am and 5am that week. She asserted this was too early for the crews to be making that much noise and asked the Council not to collect before 6am or preferably 6:30am.
13. The Council apologised for the inconvenience caused. It stated that all collections across the city were routed from 6am to 3:30pm and the time a collection was made depended on the proximity of the property to the depot. The Council explained that due to the current situation crews were allowed to start earlier so that they could finish earlier and get off the streets as soon as they finish. The Council confirmed it would remind the crews to keep noise levels to a minimum and ensure they made the collections with as little impact on residents as possible.
14. Miss X was not satisfied by the Council’s response as she had again been disturbed by noise at 5am and 5:20am. She asked the Council to review her complaint. The Council noted Miss X’s comments but confirmed the crews would continue to start early due to COVID-19. The earlier start allowed the crews to finish at a time of day when there was minimal contact with residents and optimised workers safety. The Council confirmed it would issue a reminder for crews to be mindful of noise levels when working during the early hours of the day.
15. As Miss X remains dissatisfied, she has asked the Ombudsman to investigate her complaint. Miss X asserts that as the majority of collections will still be made within the normal working day the Council must have method statements, protective equipment and operating procedures for social distancing, and an earlier start time is unnecessary. At the time of Miss X’s complaint, the Council’s website asked residents to put their bins out by 5:30am on collection day. Miss X therefore argued the Council should not be collecting before then and should return to the normal collection hours.
16. In response to my enquiries the Council states it introduced staggered start times for domestic waste collections in mid-March 2020 to account for staff safety. It states crews are currently split into three different starting slots at either 5am, 5:30am or 6am to reduce the number of crew members at a depot and enforce social distancing. The Council states it took this approach to minimise contact with service users and to reduce traffic disruption whilst crews carried out their work. The Council will review the operating hours, but there is no set timeframe for this review. The Council believes these measures will need to remain in place for the foreseeable future.
17. The Council also states there may be collections from flats with communal containers before 5am as these crews start at 4:30am. It states the crews are allowed to decide where to start their routes. In doing so, crews need to consider safety factors such as not attempting to collect waste between 8am and 9am where there is a school nearby. The Council has confirmed that Miss X’s road is the start of the collection route.
18. When it receives complaints about domestic waste collection activities the Council states it Environmental Protection team refers residents to Waste Management in the first instance. If the problem persists and appears to be a consequence of unreasonable activity (mostly when very early in the day) the environmental protection team may investigate. As councils cannot take enforcement action against themselves, the Council states there is limited action it can take. However, residents can take action against the Council for nuisance under the Environmental Protection Act.
19. In response to the draft decision the Council states Miss X has not made a complaint directly to the Noise Team in Environmental Health. It suggests Miss contact the team directly so that it can investigate her concerns.

Analysis

20. I consider there were failings in the way the Council responded to Miss X’s complaint of noise nuisance from the early morning waste and recycling collections. The Council has a duty to investigate complaints about statutory nuisances and has confirmed its environmental protection team will investigate concerns about noise from waste collections. But there is no evidence they did so in this instance.
21. The Council noted Miss X’s concerns about the noise disturbance from the early morning collections and confirmed the collections would continue. There is no evidence it considered whether the noise from the collections could amount to a statutory nuisance that should be investigated, or whether anything could be done to mitigate the impact on Miss X.
22. While I recognise the Council would be unable to take enforcement action against itself, I consider the failure to investigate Miss X’s concerns about noise nuisance amounts to fault. If the Council had investigated Miss X’s complaint and determined there was a nuisance, even if this was not a statutory nuisance, it could have considered ways to mitigate or minimise the noise levels.
23. The Council introduced the earlier start times as a response to COVID-19. The Government has not introduced any new legislation or statutory guidance on waste and recycling collections during the COVID-19 pandemic. It has published non- statutory guidance on prioritising waste and recycling collection services, but it is for individual councils to determine how they will maintain the service.
24. The Council states it considered the impact of the earlier collection times on residents would be that collections could continue throughout COVID-19 and that resident and crew contact would be kept to a minimum. There is no evidence the Council considered the impact the increased noise in the early hours of the day could have on residents, or how this could be minimised. The collection of waste and recycling is inherently noisy, and I consider the Council’s failure to fully consider the impact of early morning waste and recycling collections on residents to be fault.
25. These failings in the Council’s service have caused Miss X an injustice. Until the Council has properly investigated Miss X’s concerns and been able to identify whether the noise would amount to a nuisance, and whether measures can be taken to minimise it, it is not possible to determine the full extent of any injustice to her.
26. It is clear however that the failings in the Council’s service have caused Miss X avoidable distress and uncertainty and put her to unnecessary time and trouble in trying to resolve the issue.

Agreed action

27. The Council has agreed to apologise to Miss X and pay her £100 in recognition of the distress and uncertainty she has experienced and the time and trouble she has been put to by the Council’s failure to appropriately investigate her reports of noise nuisance.
28. The Council should take this action within one month of the final decision on this complaint.
29. If Miss X makes a complaint directly to the noise team in the Environmental Health service, the Council will investigate Miss X’s concerns in accordance with its procedures and keep her informed of the outcome and, if appropriate, any action it will take to minimise the noise.
30. If the Council’s investigation determines there is a statutory nuisance it should also consider how the delay in identifying this has impacted on Miss X and take action to remedy any injustice.

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Final decision

31. The Council’s failure to investigate Miss X’s complaint of noise nuisance amounts to fault. This fault has caused Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman