Summary: Miss X complained about the way the Council handled constructing a development near her home, about its communications and complaint responses. Miss X said it caused stress which has affected her mental and physical health. Largely we do not find the Council at fault. However, we find some fault which caused injustice. We are satisfied the Council has already taken appropriate action to remedy the injustice and improve its service.

The complaint

1. Miss X complained about the Council’s development near her home. Specifically, she complained the Council:
1. did not follow planning and building guidelines;
2. damaged her property during construction;
3. lied to residents and gave misleading information about noise and vibration data;
4. breached her personal data;
5. communicated poorly; and,
6. failed to handle her complaints in line with its complaints procedure.
2. Miss X said it caused stress which affected her mental and physical health.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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What I have and have not investigated

Scope of the investigation

10. Miss X complained to us in September 2024 about the Council’s construction work going back to January 2023.
11. As I said above, we cannot investigate late complaints unless we decide there are good reasons. Miss X said she did not complain to us earlier because of the severe impact of the building works on her health. She said that, in hindsight, she should have complained to us earlier.
12. I have considered Miss X’s reasons for not complaining to us earlier. I do not find good reasons for us to exercise discretion and investigate any further back than 12 months before Miss X brought her complaint to us.
13. For that reason, I have investigated from September 2023 until April 2024. April 2024 was the Council’s final response to Miss X’s complaints.

Part a of the complaint

14. Miss X complained the Council did not follow planning and building guidelines. She complained about piling, section 61 notices, noise levels, and construction method statements.
15. Construction method statements outline step-by-step instructions for a construction project. Miss X complained that in February 2023 the Council sent her an undated and unsigned copy of a construction method statement.
16. As I have said above, I have investigated from September 2023. This means that Miss X’s complaint about the construction method statement is too long ago for me to consider.
17. For this reason, I have investigated the parts about piling, section 61 notices, and noise levels.

Part b of the complaint

18. Miss X complained the Council damaged her property during construction.
19. Property damage from construction is a matter for the courts. As I have said above, we cannot normally investigate a complaint when someone could take the matter to court. I consider it reasonable for Miss X to take this part of her complaint to court. For this reason, I have not investigated part b of the complaint.

Part d of the complaint

20. Miss X complained the Council breached her personal data.
21. As I have said above, we normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. I do not consider there are good reasons for us to investigate this part of Miss X’s complaint. I consider the Information Commissioner is better placed to investigate this.
22. For this reason, I have not investigated part d.

What I have investigated

23. I have investigated parts a, c, e, and f of this complaint.

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How I considered this complaint

24. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
25. I considered the relevant legislation, statutory guidance, and policies, set out below.

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What I found

What should have happened

Construction and planning

26. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:

• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and,
• traffic from construction vehicles.

27. While construction management conditions may help lessen the harmful impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
28. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under Environmental Protection Act 1990 or the Control of Pollution Act 1974.

Section 61

29. Section 61 of the Control of Pollution Act 1974 regulates prior consent for work on construction sites. A contractor or developer applies to the council for consent to carry out works which are likely to have a significant impact on the local community due to the generation of noise and vibration on site.
30. A Section 61 notice sets out what works are going to be completed, how they will be completed, and what mitigation measures will be carried out to minimise noise.

Party Wall Act

31. The Party Wall Act 1996 applies when someone is constructing a new building or structure close to a nearby property. The Act says if someone wants to excavate within three or six metres of a neighbouring building, they must inform the owner of that building by serving a notice.
32. The Act says owners of neighbouring buildings can take their own private legal action against the person constructing the new building or structure.

Complaints procedure

33. The Council’s complaints procedure issued in October 2023 set out three stages of complaint response. It set out the timeframes for the Council to respond to complaints: within 15 working days at stages one and two; and within 20 working days at stage three.
34. This procedure said progressing to stage three was at the Council’s discretion. It said:

“If after consideration … the request for a Stage Three is not accepted, the complainant will receive details of the decision, the rationale, next steps, and how the complaint can be referred to the relevant Ombudsman.”

35. The Council amended its complaints procedure in February 2024. This new complaints procedure set out two stages of complaint response. It set out the timeframes for the Council to respond to complaints: within 15 working days at stage one; and within 25 working days at stage two.

What happened

36. Miss X lives close to a site that is being developed by the Council. Miss X told the Council her concerns about the development’s construction.
37. In early 2024, the Council met with Miss X and another resident about their concerns. The Council said it would put certain measures in place.
38. Miss X made two complaints.
39. In its complaint responses, the Council said it told the construction company they had breached the section 61 notice (explained above) by working out of the hours set out in the notice. It said it would monitor the site and record any breaches over the next few weeks. It said the construction company apologised for working outside the agreed hours, and it would not happen again.
40. The Council apologised for the disturbance and disruption Miss X had faced over a prolonged period of time. The Council said it had given residents technical information about noise and vibration monitoring. It recognised this could be confusing.
41. The Council said it could have provided more information about the impact and noise of “piling” (when long piles are driven into the ground to reinforce construction). It said it could have communicated better with Miss X.
42. The Council said it carried out the construction works in line with legislation. It said it could not determine whether piling damaged Miss X’s property. It said she should take this up with her insurance or the Council’s claims process.
43. The Council said it had responded to all of Miss X’s correspondence but accepted it had not responded to some videos she sent. The Council said this was because its IT system had blocked those emails because of the language she used in the emails.
44. Miss X asked the Council to consider one of her complaints at stage three.
45. The Council said it would not review the complaint at stage three. It recognised the works had been disrupting and apologised for Miss X’s experiences. The Council apologised that its communication had not always met its standards. It said it was inconsistent about how it kept Miss X informed about works.
46. Miss X then complained to the Ombudsman.

Analysis

Planning and construction guidelines

47. Miss X complained the Council did not follow planning and building guidelines (part a of the complaint). She complained about piling (explained above), section 61 notices (explained above), noise levels, and construction method statements. I address these separately below.
48. As I have explained above, I have not investigated Miss X’s complaint about construction method statements.
49. Piling
50. Miss X said there was piling within 25 metres of her property which she said was unlawful. Miss X said the Party Wall Act is relevant here.
51. I do not agree. I have considered the Party Wall Act. This says the person doing the constructing or developing should serve neighbours with a notice if they intend to excavate near their neighbour’s foundations. This was relevant at the start of the works, which was in 2022. This is outside the scope of my investigation.
52. I have found no evidence to support Miss X’s claim that piling should not have taken place within 25 metres of her property.
53. Miss X said the Council should have done surveys of her property before works started, during the works, and after. Miss X said there had been no surveys. She said the Council said it had surveyed her property from outside.
54. I have not investigated the Council’s’ actions before or after the works because these are not within the scope of my investigation. Regarding surveys during works, I have found no planning law or guidance that supports Miss X’s claims that councils should or must survey properties during construction. For this reason, I do not find the Council at fault.
55. Section 61 notices
56. I have explained Section 61 notices above.
57. Miss X said there should be a Section 61 notice in place before starting works.
58. Works began in 2022 which is outside the scope of my investigation. However, Miss X said works restarted in January 2024 after a break. She said there should have been a new Section 61 notice in January 2024.
59. The Council said there have been two Section 61 notices for this development, both issued before the start of the scope of my investigation. I do not agree with Miss X that because works restarted after a break there should be a new Section 61 notice. I therefore do not find the Council at fault.
60. Noise levels
61. I have seen environmental monitoring reports for the period I have investigated. These reports show the daily recorded noise levels from noise monitors on site. They show the noise from the site did not breach the limits set out in national guidance.
62. I am satisfied the Council continuously monitored noise levels throughout construction. I am satisfied the Council considered national guidance and satisfied itself that the works did not breach the limits.
63. I therefore do not find that the Council failed to follow planning and building guidelines.

Misleading information

64. Miss X complained the Council lied to residents and gave misleading information about noise and vibration data (part c of the complaint). She said the Council withheld data, moved monitoring equipment around the site, monitors ran out of battery, and the Council gave conflicting information about the locations of monitors.
65. In a complaint response, the Council said it provided Miss X with technical information. It said this was well-intentioned but could have been confusing.
66. I do not find the Council at fault for moving monitors.
67. I have seen no evidence that monitors ran out of battery leading to a failure to record noise levels. The evidence I have seen shows daily noise monitoring readings.
68. I have seen no evidence which persuades me the Council withheld data, lied or gave misleading information. While the technical information may have been confusing to a non-professional, this is not evidence of fault.
69. For these reasons, I do not find the Council at fault.

Communication

70. Miss X complained the Council communicated poorly (part e of the complaint). Miss X complained about communication from February 2023 onwards. I have investigated the Council’s communication from September 2023 to April 2024.
71. During this period, the Council met with Miss X and others twice to discuss their concerns. This is good practice where there is a large construction project that affects a number of residents over a period of time.
72. In a complaint response, the Council recognised it could have provided more information about the impact and noise of piling works. It also accepted it could have communicated better with Miss X.
73. The Council said it would ask officers to communicate more clearly. It said things can change with large projects and those changes need to be communicated effectively. It apologised this was not Miss X’s experience.
74. The Council also recognised it had been inconsistent about how it kept Miss X informed about work and responses to her emails.
75. I find the Council at fault for its communication with Miss X. I find this fault caused Miss X uncertainty, which is injustice.
76. The Council recognised it was at fault and apologised for the uncertainty this caused. The Council identified learning points and put them in place. This is positive.
77. I am satisfied the Council has remedied the injustice here and taken appropriate action to make sure this does not happen again. For this reason, I will not propose any further remedies or service improvements.

Complaint handling

78. Miss X complained the Council failed to handle her complaints in line with its complaints procedure (part f of the complaint). Miss X said the Council failed to register some complaints, did not respond within its timeframes, and refused to progress some complaints to the next stage.
79. Miss X complained to the Council a number of times, two of which are within the scope of this investigation.
80. For one of her complaints, Miss X asked for stage three. The Council decided it would not progress to stage three. The Council was entitled to decide this, and this decision was in line with its procedure. The Council sent its responses within the timeframe set out in the procedure that was in place at the time.
81. For the other complaint, I find the Council responded in line with the complaints procedure that was in place at the time. For this reason, I do not find fault.
82. The Council’s evidence shows that Miss X complained in September 2023 about noise and vibration from the site. The Council signposted Miss X to its planning department to discuss it further. The Council closed the complaint.
83. I find the Council was entitled to pass Miss X’s communication to the planning team. I find no fault with the Council not registering this as a formal complaint.
84. Miss X continued to email the Council about noise and complaints through to January 2024. In January, Miss X emailed the Council saying the noise and vibrations had been severe. She said: “You can treat this as a formal complaint”. The Council decided to close the complaint.
85. The Council was entitled to close this complaint. It could have responded to that email saying it would not investigate because this was another complaint about the same issue. However, I do not find this is significant enough to constitute fault.
86. I do not find the Council failed to register some of Miss X’s complaints. I find the Council treated Miss X’s correspondence appropriately.
87. For these reasons, I do not find the Council at fault.

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Decision

88. I find no fault for parts a, c and f of the complaint. I find fault causing injustice for part e which the Council has already remedied.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman