Summary: Mr C complains about the Council granting a licence to a contractor to lay cabling at night in a residential area. When he complained, the Council’s responses minimised the extent of his family’s distress. The Ombudsman upholds the complaint. The Council has agreed to our recommendation.

The complaint

1. The complainant, who I refer to here as Mr C, complains:

• the Council granted a licence for a contractor to install cabling at night in a residential area;
• in response to his complaint, the Council said the reason it allowed night-time working was to minimise disruption for local businesses. But when the contractors were working in the nearby shopping area, it was only working during the day. So the Council’s stated reasons made no sense;
• the Council’s complaint response minimised the extent of the injustice. In fact his family’s lives were impacted for around three weeks.

2. As a remedy, Mr C seeks an apology and a payment for the distress.

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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’.
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr C;
• made enquiries of the Council and considered its responses;
• spoken to Mr C;
• sent my draft decision to Mr C and the Council and considered their responses.

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What I found

Legal and administrative background

6. A company or individual who wants to install and maintain apparatus on a highway needs to apply to a council for a licence under Section 50 of the New Roads and Street Works Act 1991.

What happened

7. The Council issued a permit to a company to lay cables near Mr C’s home. The company was a contractor working on a project the Council was involved in.
8. On the first day of work, noise continued past midnight and Mr C emailed the Council to complain. In response to this, and contact from local councillors, the Council agreed with the company the next day that no digging would take place after 11 pm. This did, however, mean the work would take longer to complete than originally planned.
9. Mr C complained again about the noise a few days letter. The Council closed the complaint, as the work was due to end a few days later.
10. About a week later the contractor asked for an extension: it said the works were delayed due to poor weather.
11. A few days later Mr C reported further drilling after 11pm. The Council said it was disappointed and went back to the contractor.
12. Mr C made a formal complaint. He asked the Council to pay him compensation. The Council’s response:
• advised the original decision “..was to complete works during the daytime. However, due to locality … a high footfall existed. Therefore, an internal decision was taken by the Street Works Team to undertake this works during a late evening and/or overnight”.
• the works were meant to take 10 days. But after the Council restricted digging to before 11pm, this meant they took longer.
• it upheld the complaint and sincerely apologised for the contractor’s disruption.
13. Mr C asked to escalate his complaint. In response, the Council’s records show it was considering a request by Mr C for a £100 payment for his distress. Mr C later deemed this insufficient, so he complained to the Ombudsman.
14. In response to my enquiries, the Council sent me its records of the permit application process. These included applications to vary the process. It was as part of one of these applications, that the Council inserted a condition about the times of work. It has not sent me any contemporaneous record of the internal discussion it says it had when it decided to allow night-time working.
15. Its responses advised:
• The decision to allow night-time working was to minimise disruption to business on a high street (some earlier daytime work had been carried out for a specific purpose);
• “The residential area [where Mr C lives] is a continuation of the commercial area and unfortunately the road was not split for the works due to the nature of the installation required. It cannot have breaks in the ducting or fibre as it would then require street furniture to be installed and would make it difficult to service in the future. On this basis, the permit was applied to the entire length of the [road]”.
• Its Environmental Health team had informally investigated but not taken any formal action.
• “all overnight works across the city near to residential areas restrict noisy activities beyond 22:00hrs through a standard condition – NCT12a “Noise levels to be kept to an absolute minimum beyond 22:00hrs due to residential area”. This condition does not restrict works beyond 22:00hrs, it is merely intended to restrict noisy activities that could disrupt local residents; works can continue through the night in line with the permit.”

Analysis

16. The work was part of a major scheme and I do not consider the Council was at fault in permitting it to take place. It was inevitable it would lead to some noise and disruption.
17. I do have some concerns the Council’s records suggest that its first permit allowed overnight working with no consideration of what work was allowable during that time. But the Council acted immediately it received Mr C’s complaint about disturbance at night and restricted the hours of work. Mr C did have to make some further contacts, so he was caused further injustice.
18. Considering this history, and with reference to the Ombudsman’s Guidance on Remedies, my view is Mr C’s original suggestion of £100 is appropriate for his family’s avoidable distress. It has already apologised in its complaint response.
19. The Council’s response to my draft decision said:

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Investigator's decision on behalf of the Ombudsman