Summary: Mr A complains the Council failed to properly investigate his complaints of a statutory noise nuisance, which forced him to move house and incur costs. The Ombudsman finds fault with the Council for failing to follow its noise policies, and for delaying investigating Mr A’s noise complaints. This caused Mr A distress and uncertainty. The Council has agreed to pay financial sum to Mr A in recognition of the distress and uncertainty caused. The Council has also agreed to implement service improvements.

The complaint

1. Mr A complains the Council failed to properly investigate his reports of a statutory noise nuisance.
2. Mr A says this caused him to endure significant distress due to the noise levels in his home and resulted in him incurring costs to move house.

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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’. 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)
4. 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)
5. 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

6. I considered Mr A’s complaint and the information he provided. I also considered information provided by the Council and its policies for noise. I also considered comments from Mr A and the Council on a draft of my decision.

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What I found

Legislation

7. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance could be caused by a number of things and includes noise from premises or vehicles. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.
8. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit a noise-monitoring device, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
9. Once the evidence-gathering process is complete, the environmental health officer will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.

Covid-19 pandemic

10. From March to May 2020, England was in the first of three national lockdowns. People could only leave their home for limited purposes including travelling to and from work, but only where this was necessary. In May 2020, the Government said people who could not work from home should return to the workplace. In September 2020, the Government announced new restrictions including working from home. A second national lockdown came into force from November to December 2020. The third national lockdown was in place from January to March 2021.

Council’s noise policy

11. The policy provides that, except in exceptional circumstances, noisy construction works will only be carried out between 8am-6pm Monday to Friday, from 8am-1pm on Saturdays and not at all on Sundays, Bank or Public holidays.
12. Contractors / developers can (but it is not mandatory) seek a written consent under Section 61 Control of Pollution Act 1974 from the local authority to gain consent to carry out construction works where conditions will be agreed as to the operating hours and days when work may take place outside the normal construction hours.

Council’s policy for construction sites

13. The Council has an additional policy specifically for construction sites. In this policy, it sets out the expectations that construction sites must meet.
14. The policy says “An action in statutory nuisance can be brought by a member of the public even if the works are being carried out in accordance with a prior approval or a notice (s.82 of Environmental Protection Act 1990)”.
15. The policy also states that “baseline noise surveys should be carried out prior to any works commencing in order to provide a basis for determining acceptable noise levels for each specific site. These noise levels will be included in any formal agreement between LBTH and the Contractor. A programme of on-site noise monitoring is required to demonstrate compliance with agreed standards. Survey procedures and locations are to be agreed with LBTH in advance”.
16. Finally, the policy sets out the acceptable hours and noise levels that sites must operation at. It says during normal working hours, the maximum period noise levels measured 1 metre from the façade of any occupied or residential buildings, generated by construction plant and equipment including the movement of vehicles to and from the site should not exceed the following limits:

• Monday to Friday 08:00 to 18:00 – an average of 75 decibels
• Saturday 08:00 t0 13:00 – an average of 75 decibels

What happened

17. Mr A moved into a property at the start of November 2020
18. At the same time, construction work began on the site next door and attached to Mr A’s property to erect a new building.
19. Mr A complained to the Council, his landlord and the site surveyor shortly after moving in about the noise he and his partner were experiencing as a result of the construction work.
20. Due to the Covid-19 pandemic and resulting lockdown, Mr A and his partner were working from home.
21. In his complaint, Mr A documented that he had reason to believe the site was operating at over 95 decibels.
22. The Council responded to Mr A and said that if the site was operating in the agreed hours, it could not investigate the complaint as a statutory nuisance. The Council did not take any further action.
23. Mr A complained to the Council about the noise again in at the beginning of January 2021. He reiterated the noise was above the threshold.
24. The Council sought documentation from the construction site mid-January, asking for reports of the noise and vibration levels. The Council also said it would not visit Mr A’s home to assess the noise due to the Covid-19 pandemic.
25. The construction site did not provide the documents within the timeframe requested, however later provided the documents. The Council said these documents showed noise levels within the requirements set by the Council.
26. In February 2021, Mr A and his partner decided to move from the property due to the continuing noise. Mr A had to pay fees to end his tenancy early and pay costs to move.
27. Mr A complained to the Council that it had not properly investigated his reports of a statutory noise nuisance.
28. In its stage 1 response, the Council said that initial reports suggested the site was operating within the time and noise expectations set, and therefore no action would have been taken.
29. In its stage 2 response, the Council reiterated that reports showed the site was not operating outside of the accepted guidelines. It said it had received documents from the site to show this. It also said the Council allows noise levels up to 75 decibels when averaged over the working day (10 hours for weekdays and 5 hours on a Sunday).
30. Mr A remained unhappy with the Council’s response and bought his complaint to the Ombudsman.

Analysis

31. I have considered evidence from Mr A and the Council in my investigation. I have also considered the two policies from the Council about noise from construction sites.
32. When Mr A first reported to the Council about the noise in November 2020, he was told the Council could not investigate if the site was working within the agreed hours.
33. This was fault by the Council, as its policy sets out that complaints can still be made and investigated even if the works are being conducted in accordance with the prior approval.
34. Additionally, Mr A had explained to the Council he had recorded the noise and had reason to believe it exceeded 95 decibels. The Council’s policy says that noise should not exceed an average of 75 decibels for constructions sites in residential areas.
35. When Mr A contacted the Council again in January 2021, the Council sought documents from the construction site about its noise and vibration levels.
36. It is reasonable to say this action should have been taken back in November, when the Council failed to follow its policies on noise from construction sites.
37. By not acting until January, the Council failed to investigate Mr A’s complaints in a timely manner and failed to follow its policies. This was fault by the Council causing distress and uncertainty to Mr A.
38. I have also reviewed the Council’s complaints response. In both complaint responses, the Council says that initial reports suggest the site was operating within the guidelines, however I have seen no evidence from the Council what it has based this decision on.
39. Furthermore, in the final complaint response, the Council told Mr A it had received documents from the construction site which shows it was operating with the guidelines. I sought this information as part of my investigation and the Council responded advising it had not pursued the reports as Mr A had relocated.
40. Therefore, the final complaint response was misleading, and misled Mr A into believing the Council had investigated and there was no statutory nuisance. However, the Council had not completed the actions it told Mr A it had completed and did not complete its investigation.
41. The Council did not complete its investigation into the noise as Mr A moved from the property in February 2021. It decided to close the investigation as there was no longer an injustice. By doing this, the Council did not decide whether there was a statutory nuisance.
42. I cannot find fault with the Council for failing to act on a statutory noise nuisance as no statutory noise nuisance was identified.

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Agreed action

43. Within 4 weeks of my final decision, the Council has agreed to

• Write to Mr A and apologise for the fault identified.
• Pay Mr A £600 in recognition of the distress and uncertainty caused by the Council.

44. Within 12 weeks of my decision the Council has agreed to

• Share this decision with staff and highlight where the policy was not followed.
• Provide further training and guidance to staff about how to apply policies to complaints about noise from construction sites.
• Discuss with staff the importance of transparency when responding to complaints.
• Review its policy on noise from construction sites and how it applies this to noise complaints over 75 decibels.

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Final decision

45. I have now completed my investigation. I find fault with the Council for failing to follow its noise policies and for delaying acting on Mr A’s noise complaints.

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Investigator's decision on behalf of the Ombudsman