Summary: We have found no fault with the Council for the delays in implementing noise mitigation measures in line with a previous Ombudsman decision. The cause of the delay was unforeseen and unavoidable.

The complaint

1. Mr X complained the Council has failed to implement the actions agreed in a previous Ombudsman decision. He said the Council has not erected a fence to shield the noise from the road, nor has it installed acoustic windows or a ventilation system in his property.

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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 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)
3. 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

4. I have considered Mr X’s complaint and have spoken to him about it.
5. I have also considered the Council’s response to Mr X and to my enquiries. This includes specialist reports.
6. Mr 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

What happened

Background

7. Mr X brought a complaint to the Ombudsman in November 2021. He complained the Council failed to properly discharge conditions about noise and contamination on planning consent for the house he bought earlier that year. In July 2022, we found fault with the Council and the Council agreed to a list of actions. These included the requirement for the Council to:
• Draw up an action plan for the mitigation works already identified by both noise assessment reports (particularly glazing, ventilation, and measures for the garden), along with any further measures that might have since been recommended.
• Ensure the works in the action plan are done at no expense to Mr X within six months. Should the developer/builder refuse to pay or arrange or contribute to the mitigation measures, the Council agrees to fund and do the mitigation measures instead. The Council should provide updates to Mr X about progress every month.

Remedy not implemented.

8. During 2023, Mr X reported to the Ombudsman that the Council had not implemented the remedy agreed. We contacted the Council to clarify the outstanding issues. The Council confirmed that since our decision, it had been in regular contact with Mr X and was progressing the remedy. It explained that initially Mr X would not agree to the works, then due to the complex nature of the works, this was taking longer than expected. We were satisfied with the Council’s progress and told Mr X we would not be taking further action.
9. Mr X continued to contact the Ombudsman. In April 2024, we agreed to open a new complaint that the Council had not implemented the agreed actions from the previous Ombudsman decision.

New Complaint

10. Mr X complained the Council had not implemented the actions in our previous remedy. Specifically, the Council had not installed acoustic windows in his property, nor erected an acoustic fence between his property and the road. These were identified as ways to mitigate traffic noise in an independent noise assessment.

Progress and delays

11. Between our decision in 2022 and February 2023, Mr X was not happy for the Council to proceed with the works. During this period, the Council dealt with the paperwork, legal issues and negotiated with Mr X. But could not start work on the ground. The contaminated land continued to be an issue and Mr X requested a wall instead of a fence which delayed matters.
12. In June, following a contaminated land report and feasibility discussions regarding the fence/wall, the Council decided to proceed with a fence rather than a wall. This was due to cost, the wall providing no greater performance and fewer engineering risks.
13. In July, the Council tendered for the acoustic fence and windows solutions. Following a poor procurement return, the Council revised the specifications for the window and ventilation. The Council discussed the window solutions with residents including Mr X in November 2023. Mr X was unhappy with the Council’s recommendation for secondary glazing rather than acoustic glazing.
14. Throughout November and December, the Council discussed concerns about the positioning of the proposed fencing with the National Grid and utility firms. By the end of 2023, the developers had carried out topographical and underground utilities surveys, but further work was needed to determine exact position of the proposed fences.

Window review

15. In January 2024, acoustic specialists sent the Council a briefing note about the different types of glazing. They concluded that a secondary glazing system would be better than acoustic glazing. Secondary glazing would not disturb existing brickwork. They said this is important as external noise primarily intrudes at acoustic weak spots which would be likely if the whole casement is replaced (as with the installation of acoustic glazing).
16. Around the same time, engineers confirmed that no work could be started on the fencing until the contaminated land issue was resolved.
17. The Council shared this information with Mr X. After further discussions, and at the request of Mr X, the Council asked the acoustic consultants to review the approach the Council has taken to the windows and fences. Mr X said he wanted the fence erected before he would accept a window solution.
18. The consultants confirmed there was no need to wait until the feasibility of the fencing is resolved before sorting the windows. Mr X said he would agree to this but maintained he wanted acoustic glazing, not secondary glazing. The Council explained the consultants had said that secondary glazing was the better option to reduce noise.
19. In an attempt to break the impasse with regard to the windows, the Council offered a solution to Mr X. It said it would be willing to proceed with his preferred window option despite the noise consultant’s view that it was not the best noise solution. However, this would be on the understanding that he could make no further complaints about noise.
20. In July 2024, the Council sent Mr X a legal agreement to sign confirming his choice of windows.

My findings

21. Two years after the Ombudsman’s decision and the Council has not implemented noise mitigation works. If implemented in line with our remedy, the Council would have completed the works within 6 months of our decision. At the time of our decision, this seemed like a reasonable length of time to complete the works.
22. It is clear there have been multiple reasons for the delays; these were unforeseen by the Ombudsman when we set the 6 month deadline, and to the Council when it agreed to the remedy.
23. The Council has been working continuously towards the installation of windows, the erection of a fence and installation of a ventilation system since 2022. The Council has taken advice from independent specialists while also ensuring the costs are kept down as all public bodies must do. The Council has also been in regular contact with Mr X and provided regular updates as per the Ombudsman decision.
24. As frustrating as the delays are to Mr X, I have found no fault with the Council for the unavoidable delays in implementing the noise mitigation actions.

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Final decision

25. I have completed my investigation. I have found no fault with the Council for the delay in implementing the noise mitigation actions agreed in the Ombudsman’s previous decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman