Summary: Mrs B says the Council delayed installing a fence to shield her property during development works in 2019. The Ombudsman has found evidence of delay and poor handling of the case. He has upheld the complaint and completed the investigation because the Council agrees to the recommended actions including financial redress for Mrs B and her family.

The complaint

1. The complainant (whom I refer to as Mrs B) says the Council failed to fit an acoustic fence before development works, next to her home, started in 2019.

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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. I have considered the information provided by Mrs B including photographs of her property. I asked the Council questions and have looked at its response. The Council has failed to provide any supporting papers to evidence what it did.
5. I shared my draft decision with both parties and considered their responses.

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What I found

What happened

6. Mrs B’s home had fencing, mature trees and shrubs at the front, side and rear prior to 2019. The garden is adjacent to a public right of way. Mrs B says trees started being removed for development work over a three year period. However, I have not been able to corroborate what action was taken by the Council prior to 2019.
7. In July 2019 the Council transferred land next to the property to a Developer to allow access to a new housing development being built. Part of the transfer required the Developer to have an acoustic fence fitted around the property before further works happened.
8. As I understand it in 2019 the Developer removed the trees and planting at the property. I have seen no evidence that Mrs B was kept informed about what work was planned. By the end of July Mrs B had no screening at her property or any fencing. She tells me she had to complain to the Council until a temporary metal mesh fence was fitted on 15 August. The fencing did not provide any privacy or an acoustic barrier. The Council says surveys were taken in August to fully determine the siting of the fence.
9. The Developer started to fit the acoustic fence on 3 September. It could not be completed until tree stumps were removed. Mrs B says workmen came into her garden without permission or notice to remove the stumps. The fence was finished on 4 October.
10. Mrs B subsequently complained to the Council. It replied on 21 October and apologised for the inconvenience and disturbance caused to her. The acoustic fence should have been in place before the works commenced and that did not happen. The Council acknowledged this affected Mrs B’s enjoyment of her property. It accepted it should have “put more pressure on the Developer” to complete the fence. Mrs B pursued her complaint with the Council. It sent a further response on 5 December. Problems with the temporary fencing were due to the Council failing to put “pressure on the Developer”. The Council accepted there had been a loss of privacy and the temporary fence “could have been made more secure and covered”. It offered Mrs B £200 for distress and delay. Mrs B says the apology was made after she had a meeting with personnel involved in the case.
11. Mrs B says the Council promised to keep her updated but has not been directly in touch with her since the complaint response.

What should have happened

12. The Council has failed to set out what procedures it has in place. However, it is clear the Council was required to ensure the Developer met the requirement of the land transfer. In addition, the Council had a duty to ensure the works were progressed without unreasonable delay and that Mrs B was kept informed.

Was there fault by the Council

13. There is significant fault by the Council. It has already accepted in its correspondence with Mrs B that it failed to ensure an acoustic fence was in place before any works commenced at the development site.
14. Having considered the limited evidence provided (mainly from Mrs B rather than the Council) it is apparent the Council failed to manage the fence installation from the outset and did not keep Mrs B notified of what would happen. The mature planting at the property formed a significant acoustic barrier and afforded the family privacy from the public right of way. That planting was totally removed by the end of July to allow development works to take place without an acoustic fence being installed. It appears that temporary fencing was only installed in mid-August because Mrs B complained to the Council. That fencing was inadequate because it was not secure, did not shield the family from noise and afforded no privacy at all.
15. The acoustic fence was completed on 4 October. The delays, including a survey and removal of tree stumps, were all matters that could and should have been considered before any development work started and the family left without any privacy. Mrs B and her family were left for over two months without fencing.
16. I have seen no evidence of the Council keeping in touch with Mrs B. Its October 2019 letter states she should contact her partner’s employer in the first instance who will liaise with the Developer and Council. However, I do not see it is unreasonable for Mrs B to receive some direct updates from the Council given the extremely poor handling of her case so far.

Did the fault cause an injustice

17. The failure to install acoustic fencing in July meant Mrs B and her family (including children) were unable to enjoy the use of their garden for the summer. They lost privacy, were subject to additional noise and were left concerned about security and the safety of the fencing. Mrs B also had to chase the Council for action and information.

Agreed action

18. The Council has already apologised to Mrs B and offered £200 for distress and delay. It has now agreed to my recommendations and will:
• Pay Mrs B £150 for time and trouble pursuing her case;
• Pay Mrs B £200 for distress caused by the Council’s failings;
• Pay Mrs B £200 for loss of amenity due the lack of acoustic fencing from the end of July to early October (so a total of £550 which takes account of the level of injustice and its impact on the entire household);
• Offer to meet Mrs B to answer any outstanding issues and concerns she might have;
• Set out how the Council has improved its procedures in light of this case to avoid this error happening again. Please be specific and show me what instructions for Officers are now in place.
19. These actions should be completed within six weeks of the investigation ending.

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Final decision

20. I have upheld the complaint and completed the investigation.

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Investigator's decision on behalf of the Ombudsman