Summary: There was no fault in the way the Council dealt with Mr B’s reports of noise from a nearby construction site. But there were failings in the way the Council handled Mr B’s formal complaints about the matter. The Council has agreed to apologise to Mr B.

The complaint

1. Mr B complains that the Council has failed to properly deal with his complaints about noise from a nearby construction site.

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The Ombudsman’s role and powers

2. 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)
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. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation

5. The Environmental Protection Act 1990 says that where a complaint of a statutory nuisance is made to a council by a person living within its area, it must take such steps as are reasonably practicable to investigate the complaint.
6. The following matters constitute statutory nuisances:
• Noise or vibration emitted from premises so as to be prejudicial to health or a nuisance;
• Noise or vibration that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street.
7. Councils can serve a notice under section 60 of the Control of Pollution Act 1974 to control the noise from construction works. It allows councils to put specific restraints on construction and demolition activities such as working hours or the type of equipment to be used. A person who intends to carry out works may apply to the council for prior consent under section 61. The application should include the way the works will be carried out and any steps proposed to minimise noise from the works. Failure to comply with either a section 60 notice or section 61 consent can lead to prosecution in the Magistrates’ Court.

Key events and analysis

8. In April 2016, the Council granted planning permission to itself to redevelop buildings located near to Mr B’s home. The development included almost 200 residential units, a new school, a replacement church and a retail unit. The Council gave the contractor section 61 prior consent to carry out noisy works between 8am and 6pm during the week, and between 8am and 1pm on Saturdays.
9. Between May 2017 and July 2019, the Council received 45 reports of noise nuisance from the site. Most of these reports were made by Mr B.
10. For a council to be able to take formal action against a contractor for failing to comply with section 61 consent, it needs evidence of the breach, such as an officer witnessing noisy works outside of the permitted hours.
11. The Council’s procedures state that the response time for this type of noise nuisance complaint is 45 minutes. Its records show that, in the main, it has contacted Mr B within this timescale. When officers have considered a site visit to be appropriate, they have generally done so within an hour of contact with Mr B, which I consider to be reasonable. However, when Mr B has reported noisy works starting before 8am, officers have arrived after 8am when noisy works are allowed. And when Mr B has reported that noisy works were continuing after 6pm in the week or 1pm on Saturdays, the noisy works had generally finished by the time officers arrived.
12. The Council carried out some proactive monitoring to overcome this issue. In particular, it did so for some weeks in October 2017 and August 2018. In October 2017, officers witnessed breaches of the section 61 agreed hours. It sent two warning letters to the contractor, the second of which stated that it intended to report the breaches to its legal team with a view to commencing legal proceedings.
13. The contractor responded to the letters, apologising and explaining what it was doing to prevent further incidents. The contractor’s managers also met with council officers to discuss the issues and propose mitigation measures.
14. In January 2018, the Council wrote to the contractor advising that it had decided to halt legal proceedings because the contractor had made improvements and taken action to minimise disruption from the site.
15. As explained in paragraph two, we will not question a decision which has been made without administrative fault. I have found no evidence of fault in the way the Council decided to halt legal proceedings. This was a decision it was entitled to reach.
16. Officers did not witness any breaches of the section 61 agreed hours when they carried out proactive noise monitoring in August 2018.
17. Between September 2018 and June 2019, the Council only received one report of noise nuisance from the site. That report resulted in officers witnessing noisy works outside of the section 61 agreed hours. The Council sent a warning letter to the contractor, agreed to the contractor’s request for a meeting, and then referred the case to its legal team. The Council has not provided any details in relation to any legal proceedings as it considers this may undermine its case. When the Council responded to my enquiries, legal proceedings had not concluded. It has therefore not been possible to investigate how the Council has dealt with this breach. If Mr B remains dissatisfied after legal proceedings have concluded, he may wish to consider making another complaint.
18. The Council owns the development site, but its records do not indicate any conflict of interests. The Council has clearly shown that it is willing to take action when it has witnessed a breach. I am satisfied that the Council has made significant efforts to minimise disturbance to nearby residents. It has only agreed for the contractor to carry out noisy works outside of the permitted hours when it has considered it necessary for health and safety reasons. The noisy works witnessed in January 2019 show that the Council’s efforts have not completely prevented the contractor from carrying out noisy works outside of the permitted hours, but I do not consider this is due to any fault by the Council.
19. On 16 October 2018, Mr B complained to the Council that it had failed to control its contractors from carrying out noisy works. On 1 November, after Mr B had received the Council’s response, he asked to escalate his complaint to the second stage of the Council’s complaints procedure. Mr B emailed the Council again on 16 November because he had not received a response within the Council’s target response time of 10 working days.
20. On 23 January 2019, the Council apologised to Mr B for its delay in dealing with the stage two complaint he made on 3 January 2019. Mr B told the Council that he made his stage two complaint on 1 November 2018, not the 3 January 2019. He asked the Council to explain the reasons for this error and for the delay.
21. The Council responded to Mr B’s stage two complaint on 8 February 2019. This delay was fault and would have caused Mr B some frustration. The Council failed to properly explain the reason for the delay, or the error with the date it said it had received his stage two complaint. This would have added to Mr B’s frustration.
22. The Council says that when it received Mr B’s emails in November 2018, automatic notifications should have been sent to the officer who responded to Mr B’s stage one complaint. The officer says that she did not receive any notifications, and the Council has been unable to identify any reasons for this. The officer told the Complaints Team (who is responsible for managing stage two complaints) about the emails on 3 January 2019 when she noticed them in the Council’s database.
23. To ensure future messages are not overlooked, the Council has made some changes to its system so that its Complaints Team also receives an automatic notification when a stage two complaint is made.

Agreed action

24. Within four weeks, the Council will apologise to Mr B for its failure to properly explain the reasons for the delay in dealing with his stage two complaint, and the error with the date of receipt.

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Final decision

25. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice to Mr B. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman