Decision : Upheld
Decision date : 20 Mar 2019
The Ombudsman's final decision:
Summary: Mr B complains the Council has not tackled a noise nuisance problem created by vehicles travelling over speed bumps it installed on the road next to his home. He says he is not able to enjoy his garden or sleep properly because of the noise, adding many of his neighbours are also affected by the issue. He wants the Council to remove the bumps to rectify the problem. The Ombudsman has found the Council was at fault for taking too long to complete a noise assessment relating to this issue and for the way it handled this complaint. However, we have found there was no fault in the process which led to its decision to retain the speed bumps. The faults which did occur caused Mr B and his wife frustration and inconvenience, therefore it has agreed to apologise to them for this. It has also agreed to review the Traffic Regulation Order governing weight restrictions on the road and write to the local Police and Crime Commissioner about these issues, to try and address the problem reported by Mr B.
- The complainant, who I shall refer to as Mr B, complains the Council has not tackled a noise nuisance problem created by vehicles travelling over speed bumps it installed on the road next to his home. He says he is not able to enjoy his garden or sleep properly because of the noise, adding many of his neighbours are also affected by the issue. He wants the Council to remove the bumps to rectify the problem.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I have:
- Read Mr B’s complaint and discussed it with him.
- Considered the Council’s comments about the complaint and the supporting documents it provided.
- Provided both parties with an opportunity to comment on the draft decision, and considered the comments that were made.
What I found
- In November 2016, the Council installed two flat-top speed bumps on the road outside Mr B’s home. These bumps are also known as speed tables. Local residents started complaining to the Council about the noise created by the speed tables shortly after they were installed.
- In mid-February 2018, Mr B’s wife wrote to the Council to complain about the matter, on behalf of the residents of the road. She stated traffic had increased three-fold since the speed tables were installed. She also said lorries with trailers were creating a noise and traffic was travelling at speeds in excess of 30 miles per hour. She concluded the speed tables were having a negative impact on the lives of the residents and asked that they be removed.
- At the beginning of March 2018, the Council’s Highways and Traffic Service responded to Mrs B’s letter. It stated it had arranged for a traffic count to be undertaken and it would be making recommendations to its councillors once it had assessed the results. It estimated it would do this by the end of the month and said it would contact Mrs B after with an update. It also said if it received no further contact from her within 20 working days, it would assume the matter was resolved and would close her complaint.
- Mr B complained to the Ombudsman about the matter approximately a week later. As the complaint had not exhausted the Council’s complaint procedure, we advised him to ask it to complete its investigation of the complaint, adding he could then complain to us if he was not happy with the outcome.
- At the end of July 2018, Mr B resubmitted his complaint to the Ombudsman. We contacted the Council and in response, it said it had not received any further request from Mr B or his wife. It highlighted survey work on the speed tables had recently been completed and stated it would discuss the matter with councillors after it had considered the results. It added there was no new update for Mr and Mrs B but accepted it should have kept them updated in the preceding months, as it had promised to do in its complaint response. It agreed to investigate the complaint further as its complaint’s procedure had yet to be completed.
- At the end of August 2018, the Highways and Traffic Service wrote to Mr B and acknowledged the Ombudsman had referred his complaint back to the Council for consideration. It stated it had investigated the speed and flow of traffic on the road and found both had decreased since the speed tables were installed. Moreover, it noted it had recently undertaken a noise assessment which found that Heavy Goods Vehicles (HGVs) contributed to the noise being created. However, it stated the assessment had concluded:
“… all vehicles create noise along the whole length of the road and not solely related to the humps, which indicates that vehicles travelling above the speed limit are a major factor with noise.”
- In summary, it said it would not remove the speed tables as it was likely traffic speed, and possibly volume would increase if it did this. Similarly, it stated that any increase in speed would lead to a corresponding increase in noise, given the results of the assessment.
- At the beginning of September 2018, Mr B contacted the Ombudsman and asked us to consider his complaint. We then contacted the Council and it stated the complaint had still not completed its procedure. Consequently, we referred the complaint back to the Council at its request.
- Approximately a week later, the Council’s Customer Services Team wrote to Mr B to acknowledge it was now dealing with his complaint. It said an officer would consider whether his complaint should be: dealt with further by the Highways and Traffic Service at the first stage of its complaint procedure; subject to a full stage two investigation; or referred to the Ombudsman. It added its policy was to assess stage two requests within 10 working days, although in this instance it stated it would consider his request by mid-October at the latest and attributed the delay to a high workload and staff absence.
- In mid-October 2018, the Customer Services Team wrote to Mr B and said it would not be able to respond to his complaint in the timescale it had given. It explained it needed the Highways Service to clarify some information before it could complete its review and estimated it would be able to respond by the end of the month. It also apologised for the delay.
- At the end of the month, the Customer Services Team wrote to Mr B. Regarding traffic volume, it said a recent survey confirmed this had decreased since 2017 therefore it did not uphold this part of the complaint. Although, it did accept the Highways Service should have sent him a copy of the survey data and would ensure it now did this. In relation to noise, it reiterated the reasoning given in the letter the Highways Service sent Mr B at the end of August and concluded this was a reasonable and balanced response. However, it decided to partially uphold this part of the complaint.
- It then discussed Mr B’s complaint about the speed of the vehicles using the road. Again, it reiterated its earlier findings but accepted the Highways Service did not inform him whether its survey had considered whether drivers were adhering to the speed limit or weight restriction of the road. Consequently, it stated it was unable to determine this part of the complaint and stated it would ensure the Service advised him further on these matters.
- In conclusion, it stated the Highways Service would contact him again at stage one of its complaints procedure to resolve the outstanding matters. It added he could complain to the Ombudsman if he was unhappy with its decision, or the response he would subsequently receive from the Highways Service.
- At the beginning of November 2018, Mr B, with the support of his neighbour, wrote to the Ombudsman to complain about the matter. In addition to the points already raised, he says that noise is created whenever vehicles pass over the bumps at speed and is a constant problem, particularly when lorries carrying heavy goods use the road. Similarly, he says there is a 7.5-ton weight restriction on the road but it is frequently used by vehicles which greatly exceed this limit, which exacerbates the problem.
- Two days later, the Highways Service wrote to Mr B and provided him with the results of a combined speed and volume survey that was carried out between 2015 and 2018. It also highlighted that enforcement of the speed limit and weight restriction on the road was the responsibility of the Police.
- I note the Highways Service undertook a noise investigation in response to the concerns raised by local residents, which it completed in the summer of 2018. During its investigation, it reviewed existing research on the subject before carrying out roadside monitoring of the noise being created by passing vehicles. This monitoring took place on two dates: the first was at the end of April 2017 between 1000 and 1130 hours, and the second in mid-August 2018 between 0800 and 0930 hours. It used guidelines issued by the World Health Organisation (WHO) to assess the noise then wrote a 30-page report detailing its findings.
- The report highlighted the Council had relaxed the 7.5-ton weight restriction on the road so it could be used by vehicles travelling to and from local areas that were undergoing significant development. However, it stated other vehicles were “flouting” the revised weight restriction and commented that “no enforcement procedures” seemed to be in place “to rectify the use of the road by other HGV’s”.
- It concluded the speed tables, on their own, were not a causal factor with respect to increasing noise in the area. Specifically, it stated:
“The investigation has demonstrated that vehicles travelling on the road and not traversing the speed tables still exceed the target value. This could be due to excessive speed and when based on the target value of 45dB LAmax inside a dwelling this could cause sleep disturbance if the noise levels were maintained throughout the nightime [sic]. The exception is single events of HGV’s traversing the speed tables where the investigation was able to establish that these do increase the local noise climate.”
- In relation to this latter point, it said:
“The results indicate that there is a high degree of noise above the WHO guidelines which demonstrate that if the noise levels continued at the same levels during the nightime [sic] then residents could be impacted due to sleep disturbance”.
- Furthermore, it stated:
“The investigation has established that noise from HGV’s is a contributing factor, however if the weight restriction was more robustly enforced this element would be dramatically reduced.”
- However, it noted the relaxation of the weight restriction on the road was temporary and said the impact of the noise being created by HGVs was “time limited”. The Council has since acknowledged there was no relaxation of the weight restriction and states the noise report incorrectly asserted there was. It highlights the current Traffic Regulation Order (TRO) governing the weight restriction prohibits all goods vehicles over 7.5 tonnes travelling southbound from using the road. There is no such restriction for vehicles travelling in the opposite direction.
- The Council decided to retain the speed tables after considering the report and the data from the combined speed and volume survey it conducted between 2015 and 2018, which showed average speeds had decreased since the tables were installed. It concluded their removal would likely lead to an increase in traffic speed on the road, which in turn would result in increased noise given the results of its investigation. Consequently, I cannot find any fault in the way the Council took this decision because it was based on objective data that was obtained from a methodical study conducted in line with WHO guidelines.
- However, I have found it was at fault for taking too long to complete the noise assessment. It started this after local residents complained about the noise in late 2016, then undertook roadside monitoring in April and August 2017. Yet, it took until the summer of 2018 to reach its findings, meaning there was a considerable delay in this process.
- I have also found it was at fault for the way it handled Mr and Mrs B’s complaint. When the Highways and Traffic Service wrote to Mrs B at the beginning of March 2018 at stage one of the Council’s complaint procedure, it did not state whether it upheld the complaint or not, despite its policy requiring this. In addition, it did not inform Mrs B she could request a stage two review of the complaint if she was not content with the outcome at stage one. Furthermore, it failed to update Mrs B about what it had decided to do after the traffic count was completed, despite promising it would do this. It appears there was a delay in this process, but there was no attempt to keep Mrs B updated on the reasons for the delay.
- Similarly, the Service failed again to mention the process for requesting a stage two review when it wrote to Mr B at the end of August 2018, nor did it explicitly state whether the complaint was upheld or not. However, the complaint handling did improve when the Customer Services Team dealt with the stage two request.
- Returning to the assessment, its results do make it clear that noise is increased when HGVs cross the speed tables, therefore I have considered whether there is anything the Council can do to mitigate this. Its investigation concluded the noise created by these vehicles would be greatly reduced “if the weight restriction was more robustly enforced”. I also note the investigation found that noise would be “significantly reduced” if vehicles were driven correctly and within the speed limit of the road.
- Consequently, enforcement of the road’s speed limit and weight restriction appears to be the best way to reduce the noise created by the HGVs. However, the Police are responsible for enforcing these matters, not the Council. I see it highlighted this when it wrote to Mr B at the beginning of November 2018. I understand the Local Government Association has demanded that councils be given more powers to tackle the issue of HGVs ignoring weight restrictions, reasoning the Police do not have resources to deal with the matter. But presently, the responsibility lies with the Police. Consequently, Mr B and his neighbours could consider asking their MP to propose a change in the legislation that would allow councils to take on this responsibility, although I accept this would take time, if it were to happen at all.
- Nevertheless, the Council could write to the local Police and Crime Commissioner and make her aware of the matter, asking that she reviews its noise assessment and considers taking action to address the speed and weight restriction issues. I understand Mr B and his neighbours have already tried to raise the issue with the Chief Constable of the local constabulary, but were unable to get the outcome they desired. I understand they have also discussed taking legal action to try and resolve the situation.
- Consequently, I think it would beneficial for all parties if the Council contacted the Police and Crime Commissioner to try and address the concerns raised by Mr B and his neighbours, in an attempt to avoid any legal recourse. It has agreed to do this. In addition, it also proposes to review the current TRO and investigate whether the weight restriction can be applied in both directions, rather than just southbound as it is presently. It states an exemption would apply to goods vehicles accessing properties within the area, but this amendment, in its entirety, would prevent HGVs travelling to development sites in other areas from using the road in either directions, and thus reduce the level of noise created.
- I accept the Council’s proposal and believe this, and its commitment to discuss these issues with the Police and Crime Commissioner, will, in part, remedy the injustice that Mr and Mrs B were caused by the Council’s faults. It delayed when completing the noise assessment then failed to deal with their complaint properly, which led to further delay. This caused them frustration as they felt their concerns were not being addressed, and inconvenience when Mr B had to complain to the Ombudsman several times to get the Council to progress their complaint.
- Considering the injustice caused, the Council has also agreed to apologise to Mr and Mrs B, as well as make some service improvements to try and prevent the faults identified from reoccurring.
- Within one month of the date of this final decision, the Council has agreed to:
- Write to Mr and Mrs B and apologise for the faults outlined in this statement, acknowledging the injustice it caused.
- Initiate the statutory process for reviewing the TRO which governs the weight restrictions on their road, investigating the possibility of applying the 7.5-ton restriction northbound as well as southbound.
- Write to the local Police and Crime Commissioner to make them aware of the problem and the impact it is having on local residents. It should provide a copy of its noise assessment and ask that the Commissioner considers taking action to resolve the situation.
- Provide complaint handling training to those officers in the Highways and Traffic Service that deal with complaints, focusing on the need to follow the Council’s complaint procedure. The training should highlight the importance of making a finding on the complaint (for example, whether it is upheld or otherwise) and telling complainants how they can escalate their concerns.
- Remind the Highways and Traffic Service of the need to complete assessments in a timely manner, and check the accuracy of them.
- The Council was at fault for taking too long to complete the noise assessment and for the way it handled this complaint. However, I have not found any fault in the process which led to its decision to retain the speed bumps.
Investigator's decision on behalf of the Ombudsman