Notting Hill Genesis (202118975)

REPORT

COMPLAINT 202118975

Notting Hill Genesis

20 May 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme. The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1.     The complaint is about the landlord’s response to the resident’s reports of noise nuisance from his managing agent’s contractors’ garden maintenance.

Background

2.     The resident is the tenant of the landlord of a flat in a communal building with a shared garden, of which the landlord is the leaseholder of a freeholder that employs a managing agent to maintain the building’s common parts, including the garden.

3.     In June 2021, the resident raised a stage one complaint with the landlord regarding the noise that the managing agent’s gardening contractors caused when doing maintenance work to the communal garden. He was dissatisfied that the lawnmower that they used was too loud, and that he was unable to converse on the telephone or to hear people within his household, despite having triple-glazed windows. The resident also found it difficult to sleep due to the noise, and he questioned whether other tenants who worked nightshifts would have had the same concerns, reporting that the contractors had flexible shifts instead of working at a regular time.

4.     The resident was also dissatisfied with an email that the landlord had sent to its tenants, warning about children playing in communal areas due to their excessive noise. He explained that he considered that it was unfair that children were restricted from playing due to noise, but that the managing agent’s contractors were able to make as much noise as needed when performing works to the garden. The resident further added that he had previously raised the same concerns regarding noise in September 2020, but that he had received no response to these at the time, for which he sought the use of manual instead of electric lawnmowers.

5.     In June and July 2021, the landlord issued its stage one and final stage complaint responses to the resident, stating that the gardening contractors only appeared once a week for around 45 minutes, and that the tools that made noise were used after 8am for 15 to 20 minutes, depending on the type of work required. The landlord explained that the freeholder’s head lease allowed their managing agent’s contractors to maintain communal areas such as gardens, and that the type of lawnmower used was permitted by their contract to be the contractors’ preference for what they found suitable, as they decided what tools to use based on ease and effectiveness.

6.     The landlord also informed the resident that no other tenants had made reports of noise nuisance from the gardening contractors, and that its communication that was sent to all tenants advised that that children could play in communal areas, but that, to reduce noise, they should be supervised. It added that the garden maintenance took place during the daytime, when this was not regarded as nuisance, and was necessary to maintain the shared communal areas in accordance with the obligation to do so. The landlord therefore concluded that it would not uphold the resident’s complaint.

7.     The resident was dissatisfied with the landlord’s complaint responses, stating that an electric lawnmower did not need to be used as the garden was small, and that a manual mower would be sufficient for this, querying why this was used in winter when the grass did not grow. He explained that a manual lawnmower produced less noise, and was better for the environment, disputing its position that this was not nuisance with its restriction on children playing in communal areas that tenants had not complained about. To resolve his complaint, he therefore referred it to this Service.

Assessment and findings

Scope of Investigation

8.     While the resident reports that he previously raised the issue of noise from the managing agent’s gardening contractors in September 2020, the scope of this investigation is limited to considering the landlord’s handling of his reports about this in 2021. This is because, under the Housing Ombudsman Scheme, this Service cannot investigate complaints about issues that were not brought to the landlord’s attention as a formal complaint within a reasonable period of normally within six months of the matters arising, and his complaint about this was made in June 2021. Moreover, we are only permitted to consider complaints about landlords that are members of the Housing Ombudsman Scheme, and so we cannot investigate the freeholder, the managing agent or the gardening contractors, as they are not members of the Scheme.

The landlord’s response to the resident’s reports of noise nuisance from his managing agent’s contractors’ garden maintenance

9.     Under the resident’s tenancy agreement, the landlord has an obligation to not disturb his peaceful occupation of his property unless it requires access to carry out work with reasonable notice. The landlord’s head lease with the freeholder also permits the latter and their managing agent to maintain soft and hard landscaping and planting within the communal areas of the resident’s building, This includes the regular maintenance of garden spaces to keep these neat, clean, planted, properly tended, free from weeds and with the grass cut.

10. The resident could therefore reasonably expect, under his tenancy agreement, to occupy his property peacefully without being disturbed, unless access was required to this for work with reasonable notice. He nevertheless expressed concerns about the noise caused by the tools used by the gardening contractors. However, while the noise may have been inconvenient for the resident, this was permitted by the tenancy agreement, as part of the landlord’s head lease with the freeholder, which allowed the latter and their managing agent to maintain the garden including by cutting the grass.

11. Furthermore, this meant that it was not the landlord that was responsible for employing the managing agent that arranged the contractors’ gardening, but the freeholder, so that the landlord’s role and ability to change their gardening practices was limited. The landlord was instead required to seek to limit the extent of the disturbance to the resident under his tenancy agreement by liaising with the other parties, although it had no control over them and so it was not obliged or able to change their practices.

12. The landlord instead acted appropriately by explaining to the resident that its enquiries with the other parties had confirmed that the gardening contractors had a contractual right to use any tools that they deemed to be effective for completing their work, including the type of lawnmower that they used to cut the grass. Therefore, it would have been unreasonable to have expected the landlord to have determined what tools that the contractors could have used for maintaining the garden.

13. Moreover, the landlord showed that it complied with its duty under the resident’s tenancy agreement to ensure that the disturbance to him was suitably limited by investigating his reports about this. It did so by appropriately investigating his reports that tenants who worked nightshifts were affected by the noise of the garden maintenance, as well as the volume, frequency and timing of this. As the landlord’s enquiries found no evidence of other tenants being affected by the gardening contractors’ noise, and that this suitably took place once a week for around 45 minutes after 8am during the daytime, there was no further action that it could take for this. It therefore acted reasonably in explaining that this was not regarded as nuisance, but as necessary maintenance.

Determination

14. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports of noise nuisance from his managing agent’s contractors’ garden maintenance.