Summary: There was fault by the Council. It wrongly closed a noise complaint and then delayed visiting the supermarket complained about for one month. From this point onwards, there was no fault in the Council’s investigation. An apology and a payment, remedies the distress caused.

The complaint

1. The complainant, who I shall call Ms X, complains the Council delayed taking action over noise from cars congregating in a supermarket car park.
2. Ms X also complains the Council has failed to carry out adequate monitoring to decide if noise from supermarket deliveries is a statutory nuisance. Ms X says the noise from night time deliveries has a significant impact on her, as she was woken up regularly in the night.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I read the papers presented by Ms X and discussed the complaint with her.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Ms X and the organisation 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

8. Ms X lives in a flat next to the delivery area of a supermarket. She explains that she has lived next to the supermarket for a long time, but in 2020 the store became bigger.

Noise from car park

9. Ms X said that in 2020, the supermarket stopped locking the car park at night and car drivers gathered there, playing loud music for hours every night. Ms X says she asked the Council to get the supermarket to lock the car park, but they did not help. The Council records show complaints from Ms X in June and July 2020, but the noise had stopped so officers made no visit.
10. Ms X made a further complaint in March 2021 and the Council’s records show officers advised her to call the police. Ms X says that eventually the police asked the supermarket to lock the car park which resolved the problem.
11. Ms X complains the Council delayed taking action over the noise from cars congregating in the supermarket car park.
12. In response to my enquiries the Council said ‘we did not take action in 2020 because we had no evidence of a problem, nor could we confirm the person(s) responsible. We could progress the matter in March 2022 we could use video footage provided by residents to show to the Police and the supermarket the problem existed. In March 2022 the Council monitored for the next four weeks. After the council saw cars ‘drifting’ and racing’ on the upper level of the car park, the Police were contacted. They could not attend on that occasion but would patrol the area’.
13. I asked the Council why it took action in March 2022 but not earlier. In March 2021 the Council told Ms X to contact the police directly. Whereas in March 2022 the Council carried out monitoring which showed the problem and led to the car park being locked in July 2022.
14. The Council said ‘We do not accept we are at fault with respect to addressing noise from vehicles using the supermarket car park. On receiving reports about the unauthorised use of the car park, we advised callers to report issues directly to the police. The police can stop vehicles used in this way, request information from drivers and arrest individuals. The police have powers to address this specifically under Section 59 of the Police Reform Act 2002. Following a request for assistance from the council in July 2022 the police advised we were correct in raising the matter with them, that they often patrolled the area and told us that at their last visit they had two vehicle stops and seized a vehicle for no insurance. Although limited in the direct action we could take to address this, the Council asked the supermarket to lock the car park which appears to have been effective’.

My conclusions

15. There were two complaints recorded from Ms X in 2020 and one in 2021. While I understand that Ms X may not have complained once the Council told her to contact the police, there is not enough evidence of continued complaints from 2020 and 2021 for me to say there was delay by the Council in response to the car park noise. I can see why the Council advised residents to contact the police and why, after some time the Council approached the supermarket directly. On balance, I do not consider there was fault in the Council’s actions but I can understand Ms X’s frustration that the Council did not talk to the supermarket earlier. Possibly if the Council had spoken to the supermarket earlier, the supermarket would not have agreed to lock the car park. However, it is also possible that it might have provided an earlier resolution to the problem.

Noise from supermarket deliveries

16. The Council’s records show Ms X first complained about the noise from the supermarket deliveries in December 2021. The Council closed this complaint in error. Ms X complains about noise from between 3 and 5 deliveries each night. Ms X says the deliveries can take up to 90 minutes each.
17. After Ms X made an official complaint, the Council wrote to the supermarket about the complaint and arranged a meeting for March 2022. At the meeting of March 2022 the supermarket agreed that:
• Lorries would switch off the reversing alarm and make sure there was no audible sound from radios.
• Forklift trucks would switch off beeping noise.
• Chiller units would be switched off on the lorries.
• It would remind staff to be quiet when outside with deliveries and that no loud music should be playing in the car park by staff in their vehicles.
• It would make sure the car park is closed other than to staff so there no access for the public once the store has closed.
• A manager would monitor the above when on duty to make sure it is being adhered to.
18. The Council said it would monitor the situation for the next 6 weeks to see if the noise improved once the action plan was in place. The Council asked Ms X to keep a diary via the noise app or using paper and videos to send to officers at the end of April.
19. In early May Ms X explained the noise was still causing problems and the Council contacted the supermarket again. A council officer monitored a delivery on 8 May at 2 am. Her notes say there were no alarms and the lorry engine was off when still. Her notes say ‘02:30 - unloading lorry started - could hear faint banging and crashing from the metal crates, forklift truck no noise from this’.
20. The Council visited the supermarket in mid May 2022 and requested further information in writing. Ms X chased the Council for a response in July, who said they were waiting for details of a contact in the supermarket head office.
21. The Council responded to Ms X’s official complaint in September 2022. It said ‘it logged 77 complaints between December 2021 and August 2022, from 5 households. The service conducted assessment visits at street level to decide the potential for disturbance but have not observed nuisance noise. The service have been advised this noise is a daily event and have conducted several late night visits to assess. Unfortunately, they have not observed the noise issues from deliveries directly but did note some issues where improvements could be made and discussed these with the supermarket. The Council has escalated these issues to the Head Office and followed up on this by lodging a formal complaint’.
22. The Council said ‘as a last resort the service could try to restrict the times and types of deliveries, but it needs evidence of the issues to be able so. Currently there are no restrictions on operation hours. The service may use a Noise Abatement notice to do this which would outline the restrictions but again needs evidence to do so. They have not established there is a statutory nuisance to date’.
23. The council proposed to:
• Meet with Senior Representatives at the supermarket to confirm which steps they have implemented and the actions they will be undertaking to address the complaints made.
• Confirm outcomes of the formal complaint they have lodged with the supermarket (at the very least we expect them to confirm the single point of contact who will be required to liaise with residents and the Council to implement the above)
• Issue a Community Protection Warning to the supermarket to address future antisocial car use.
24. The Council met with the supermarket in September 2022. The supermarket agreed to:
• work with the logistics team to try and get the fresh delivery out by 11.30pm to the store.
• Make up laminated cards for drivers to read when they are attending the store.
• Notify the store manager half an hour before the delivery arrived, so staff meet the delivery to ensure reversing alarm is switched off and they are not idling.
• Come up with quiet/greener campaign.
• Send a letter and perhaps a newsletter to residents.
25. The Council said it would:
• Serve an abatement notice in 14 days should the above not be implemented.
• Send letters to residents.
26. Ms X complained about noise from four nights in October 2022. The Council has said the case is still open and three monitoring visits in November and December 2022 did not record a noise nuisance. The Council has said that it proposed further monitoring at the end of December.
27. The supermarket told Ms X in February 2023 that it had worked with its depot to move delivery times, from during the night to before 10pm and after 6am, noting that if there is a delay on the roads out of their control this could push the delivery back.
28. Ms X says that the night time deliveries have now stopped, but she complains about the noise from the daytime deliveries.

My conclusions

29. It is clear from the Council’s recent responses that it is actively monitoring and working with the supermarket to reduce the noise from deliveries. And, the overnight noise has stopped between 12 and 5 am. I cannot find fault in the Council’s recent responses to complaints from March 2022 onwards. I do recognise that Ms X still complains about the daytime noise and I will ask the Council to ensure that it reaches a decision on whether the daytime noise is a statutory nuisance without delay.
30. However, there is evidence that Ms X had been making complaints about the same noise from at least December 2021, when her complaint was closed in error. The Council accepts there was a delay in contacting the supermarket about issues raised between the 28th December 2021 and 7th February 2022. The Council said ‘at this time we had no evidence of the issues reported and needed to investigate this further to find out the specifics. Before this we had received one complaint about noise from deliveries which occurred six months prior’.
31. I do find fault in the Council’s actions, it closed Ms X’s complaint in error and there was a delay of over a month contacting the supermarket. I can see that this has added to Ms X’s frustration. The Council has already apologised for the delay, but has said that it is willing to apologise further and pay £500 towards any distress caused to Ms X.

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Agreed action

32. Within one month of the date of the decision on this complaint the Council should:
• Pay Ms X £500.
• Send written apology to Ms X.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation of this complaint. This complaint is upheld, as there was delay by the Council and Ms X’s complaint was closed in error. The apology and payment remedies any distress caused.

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Investigator's decision on behalf of the Ombudsman