Westminster City Council (20 003 024)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 08 Feb 2021

The Ombudsman's final decision:

Summary: Miss D made noise complaints to the Council about extended construction works close to her home. The Council failed to investigate the noise complaints in breach of its legal duty. This resulted in Miss D being denied the opportunity to have her complaint investigated and caused her distress and trouble pursuing the matter. The Ombudsman has therefore recommended a financial remedy and service improvements the Council should adhere to in the future.

The complaint

  1. The complainant, who I refer to as Miss D, is complaining about the Council failing to investigate and act against noisy building and construction works near her home. Miss D alleges the works constituted a statutory nuisance, as defined by the Environmental Protection Act 1990.
  2. Miss D says the works interfered with her use and enjoyment of her home over an extended period of time. She says had the Council acted when it should, such interference would have been abated much earlier. Though the works have now ended, Miss D wants the Council to be held accountable for failing to act.

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The Ombudsman’s role and powers

  1. 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).

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How I considered this complaint

  1. I have reviewed Miss D’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation. Both Miss D and the Council received an opportunity to comment on a draft of my decision prior to reach a final view.

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What I found

Background

  1. A statutory nuisance is defined by the Environmental Protection Act 1990 (the 1990 Act) and can include noise disturbances. For noise to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home, injure health or be likely to injure health.
  2. Councils have a legal duty to investigate all noise complaints and where they are satisfied a statutory nuisance exists, they are required to serve an abatement notice, that is, an instruction to cease, or minimise, the disturbance. Whether a statutory nuisance exists is for a professionally qualified Environmental Health Officer to decide following a period of investigation.
  3. Under Section 82 of the 1990 Act, a member of the public can also ask a magistrates’ court to decide if a statutory nuisance exists and, if so, decide what action must be taken.

Chronology of events

  1. In March 2020, construction works started near to Miss D’s home. This involved a number of firms conducting works during the same period.
  2. In April 2020, Miss D raised a noise complaint with the Council. The Council then spoke with one project manager on-site who gave an assurance no noisy works would be conducted. The Council accepted these assurances.
  3. In May 2020, Miss D complained to the Council about how the works were not being coordinated and this was resulting in excessive noise and limiting her ability to work at home. The Council did not uphold her complaint, citing that it had a statutory duty as the local highway authority, to maintain the public highway and to allow for utilities to install new infrastructure, and maintain their existing network. Miss D later escalated her complaint to the Council. She specifically referenced the construction works as being a statutory nuisance and requested the Council take action to reduce the noise.
  4. In July 2020, the Council acknowledged Miss D’s complaint as relating to a noise nuisance resulting from the construction works. However, it did not uphold the complaint on the basis of it complying with its duties as the local highway authority. Further, it confirmed the works could not be classed as ‘noisy’ following input from its noise team and therefore no further action would be taken.
  5. In August 2020, Miss D wrote to the Council advising the noisy works were continuing despite being told they would be completed by now. The Council logged a further noise complaint from her.
  6. In September 2020, Miss D considered the construction works had finished.

My findings

  1. My role is not to investigate whether the construction works constituted a statutory nuisance under the 1990 Act. Rather, I must determine whether the Council complied with its legal obligation to investigate all noise complaints within its remit and, where necessary, act against the noise. The Council has informed me that Miss D’s complaint was not investigated as a noise complaint. Instead, it said the matter was investigated as a highways issue. Further, it maintains that Miss D has not made a formal complaint on the grounds of a noise nuisance.
  2. In my view, Miss D has been clear and concise in her multiple and repeated communications to the Council that her complaint relates to a noise nuisance. This includes two formal complaints on the subject of noise resulting from the construction works and two further complaints logged with the noise team directly. Internal Council records demonstrate Miss D’s complaints being logged as noise complaints and acknowledge that she has continuously raised these matters since constructions works commenced. In my view, the Council had sufficient information to reasonably understand Miss D’s complaint related to noise and the existence of a nuisance under the 1990 Act.
  3. The Council does however refer to one of its Environmental Health officers calling a project manager on-site on receipt of Miss D’s first complaint in April 2020. It said the project manager advised no noisy works were yet in effect and accepted his assurances in this regard. In my view, this does not constitute an investigation and does not negate the Council’s ongoing legal obligations to investigate noise complaints following further contact from Miss D. Further, the Council advise its noise team had input in Miss D’s formal complaint insofar as advising the works could not be classed as noisy.
  4. I have seen no evidence the Council has taken enough steps to identify the existence of a statutory nuisance. In any event, the Council accept it has not investigated Miss D’s noise complaint in its communications. In light of my reasons (above), I consider the Council has failed to comply with its statutory duty under the 1990 Act to investigate all noise complaints. The Council is therefore at fault for breach of a statutory duty.

Injustice

  1. Importantly, I cannot decide whether the works formed a statutory nuisance as this is the role of the Council. Further, I cannot recommend the Council now investigate as the works have now finished. However, it is my view the Council denied Miss D the opportunity to have her complaint assessed with reliability and expertise. I also consider this matter caused Miss D distress and led to excessive time and trouble continuing the complaint, beyond what was necessary in the circumstances. I have therefore recommended a financial remedy and service improvements the Council should adhere to in the future.

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Agreed action

  1. To remedy the injustice identified above, the Council has agreed to take the following actions:
  • within one month of a final decision, the Council should pay Miss D £300 as a result of the injustice identified above.
  • within three months of a final decision, the Council should review how it registers and acts on noise complaints in the future, particularly when these relate to ongoing circumstances it has knowledge of.
  • within three months of a final decision, the Council should consider providing noise diaries and installing noise recording equipment to gather evidence and investigate nuisance complaints.

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Final decision

  1. The Council failed to investigate Miss D’s noise complaint in breach of its legal duty. This resulted in Miss D being denied the opportunity to have her complaint investigated and being caused distress and trouble pursuing the matter. The Ombudsman has therefore recommended a financial remedy and service improvements the Council should adhere to in the future.

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Investigator's decision on behalf of the Ombudsman

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