The Ombudsman's final decision
Summary: Mr X complained about noise, vibration, and light intrusion due to changes to a major road junction near his home. He also complained of holes in his garden because of land movement during construction. Mr X said this caused stress and distress. We do not find the Council at fault.
The complaint
The complainant, who I refer to here as Mr X, complained about noise, vibration, and light intrusion due to changes to a road junction near his home. He complained that the noise survey did not include peak times. He also complained of holes in his garden because the land moved during construction.
Mr X said the Council has not mitigated the impact as it promised. He said this has caused stress and distress.
What I have investigated Mr X brought his complaint to the Ombudsman in October 2021. However, the plans to alter the road junction near Mr X’s house have been ongoing since at least 2018.
As I set out below, the Ombudsman cannot investigate late complaints unless we decide there are good reasons to do so. I consider reasonable opportunities existed for Mr X to have brought his complaint to the Ombudsman in a more timely manner. Therefore, I have decided there are no good reasons to exercise the Ombudsman’s discretion and look back further than 12 months before Mr X brought his complaint to us.
For this reason, I have investigated the Council’s actions from the date the works were completed (September 2020), which is just over 12 months since Mr X brought his complaint to us. The final section of this statement contains my reasons for not investigating the rest of the complaint.
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 an organisation’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) 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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
I considered the relevant legislation, set out below.
What I found
What should have happened The Highways Act 1980 gives councils the power to maintain and improve roads. There are no statutes or regulations prescribing the standards to which councils (as highways authorities) should maintain highways.
Part I of the Land Compensation Act 1973 says a person may be entitled to claim compensation for a property which has been reduced in value by physical factors (noise, vibration, smell, fumes, smoke, and artificial lighting) caused by the use of new and altered roads.
What happened
Background
The Council planned to improve an existing major road junction near Mr X’s house. In 2019, the Council received its noise impact assessment. This said the change in traffic flow would mean either no change, or negligible change, to noise. This said it was therefore not necessary to propose any measures to mitigate noise.
Also in 2019, the Council did a structural inspection of Mr X’s property.
In early 2020, the Council told Mr X a baseline noise survey was done at the start of the process. It said a further survey is usually undertaken when the works are completed. The Council also told Mr X he may be entitled to claim compensation due to the altered road (see paragraph 13) and told him how to do this.
Mr X made frequent complaints and sent numerous emails to the Council and the contractor completing the works.
The contractor told Mr X that noise and vibration levels should return to pre-construction levels. It also told Mr X that that the levels of light produced by the new lighting was the same as the original road lighting. The contractor said the only difference was that the new columns direct the light onto the road, better reducing the light pollution behind the road, and therefore it would expect a reduction of light pollution on Mr X’s property.
The works were largely completed by September 2020.
From September 2020 In October, the Council responded to Mr X’s numerous complaints. It said it would instal a screen barrier (fence) at Mr X’s property as a sign of good will.
The screen barrier was installed in November.
In December, Mr X complained of noise from manhole covers on the road. The Council said it would assess and repair manholes as necessary. It noted that the country was in a national lockdown at the time, due to COVID-19.
In May, the Council met Mr X on site. The Council followed this up in writing. The Council said (about lighting) that new lanterns will always be a little bit brighter when new. It said from a technical perspective the measured overall lighting levels were almost identical to the previous levels.
The Council said (about noise) that the difference in noise levels would result in technically ‘negligible’ noise impact. It said based on these results, it did not consider it necessary to propose any noise mitigation measures to protect Mr X’s property.
The Council said (about land movement) it would be happy to continue to monitor this, and asked Mr X to raise any specific problems he identified.
In July, the contractor did remedial work on manhole covers.
In August, Mr X complained again of noise from rattling manhole covers.
Within a week, the Council told Mr X the works had been completed. It said it had done a site visit that day which confirmed the works were successful, and there were no audible noises from the manholes.
In September, Mr X complained again of noise from rattling manhole covers.
The Council replied within a week. It said since its meeting with Mr X in May, it had visited the site numerous times to follow up on his concerns.
In October, Mr X complained to the Ombudsman.
Analysis Noise The Council says each time Mr X has raised concerns about noise from manhole covers, it has carried out inspections and remedial works as soon as practically possible. I have seen no evidence to the contrary.
I find the Council has responded to Mr X’s concerns appropriately and without delay. For this reason, I do not find the Council at fault.
In response to a draft of this decision, the Council says it has completed further, regular checks about the manhole covers, after receiving more complaints from Mr X. It says these checks have not found it necessary to do any more remedial work. However, the Council says it is considering further work to alleviate Mr X’s concerns, as a further goodwill gesture. This is positive and evidence of good practice.
Mr X says the screen barrier (fence) does not mitigate the noise. The Council says it never implied that the screen barrier would mitigate noise. The Council repeatedly told Mr X the screen barrier was a good will gesture. Also, the noise impact assessment from 2019 says no noise mitigation measures were necessary. For this reason, the Council was under no obligation to instal any noise mitigation measures.
For these reasons, I do not find fault with the Council for installing a screen barrier which does not mitigate noise.
Mr X wants the Council to instal a ‘proper’ sound barrier. I find there is no requirement for the Council to do this because the surveys have shown there will be a negligible increase in noise, if any. For this reason, the Council is not obliged to put noise mitigation measures in place.
The Council says further assessments or surveys are usually completed 12 months after the completion of an improvement scheme, if deemed necessary. It says it does not deem it necessary to complete a further assessment/survey in this case, but it will carry out an assessment/survey in the coming months to address Mr X’s concerns.
The Council says the contractor undertaking these surveys on its behalf has a backlog due to COVID-19. I do not find the Council at fault for delays caused by COVID-19.
I find the Council is under no obligation to complete a further survey, because the Council is entitled to decide if one is necessary. In this case, it decided one was not necessary. However, it is positive and good practice that the Council will complete a further survey to address Mr X’s concerns.
Light Mr X complains about light intrusion from the new lights installed as part of the major works.
The Council says light surveys show the light levels fall well within acceptable levels, and no lights shine directly onto Mr X’s property.
As I have said above, the Council has not yet completed a further survey. For this reason, it is not possible to say whether the new lights intrude onto Mr X’s property. For this reason, I cannot find the Council at fault.
Holes in Mr X’s garden Mr X says he has six holes in his garden, each about the size of a shoe and six to eight inches deep. He says this is due to the land moving during construction.
The Council and the contractor visited Mr X to see if any land movement had taken place. The Council says there is no evidence of land movement.
The Council also says it took photos of Mr X’s property during the early stages, during a structural report. It says Mr X has not asked the Council for a further structural report to determine any structural movement within his property. The Council says it would need evidence of movement from a surveyor working on Mr X’s behalf.
Mr X has not been able to provide the Ombudsman with any evidence of these holes. As there is a lack of evidence, I cannot find the Council at fault. Further, as Mr X has not provided the Council with evidence from a surveyor, I cannot find the Council at fault for not taking any further action.
The Council said it would monitor this. Mr X says he does not know what this means. I cannot find the Council at fault for something it has not yet done. If Mr X remains concerned about land movement, he can provide the Council with evidence from a surveyor.
Further to this, the Council has repeatedly told Mr X that he may be entitled to claim compensation under Part I of the Land Compensation Act 1973 (see paragraph 13).
Final decision
I have completed my investigation and I do not uphold Mr X’s complaint. This is because there is no fault.
Parts of the complaint that I did not investigate As I have said above, I have not investigated the parts of Mr X’s complaint that refer to events before September 2020.
Vibration Mr X complains that the Council did not include vibration in any of its assessments.
I find that there have been no assessments completed during the scope of the Ombudsman’s investigation. I understand the assessments Mr X refers to are the Council’s assessments which were done before the works were completed. This is outside the scope of this investigation because it happened more than 12 months before Mr X brought his complaint to the Ombudsman.
For this reason, I have not investigated this part of Mr X’s complaint.
Noise impact assessment Mr X complains that the noise survey (also referred to as the noise impact assessment) did not include peak times. This assessment was completed in early 2019 and is therefore outside the Ombudsman’s jurisdiction because the complaint is late.
For this reason, I have not investigated this part of Mr X’s complaint.
Investigator's decision on behalf of the Ombudsman