Wandsworth Council (202013932)

REPORT

COMPLAINT 202013932

Wandsworth Council

20 September 2021

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 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 concerns about the installation of a children’s play area outside of his property.

Background and summary of events

Background

2. The resident is a leaseholder at the property of the landlord. The landlord is a local authority. The property is a ground floor flat in a development which includes a number of flats overlooking the area in which the children’s play area has been installed.
3. At the time of the complaint, the landlord operated a three stage complaints policy. It has subsequently adopted a two stage procedure.
4. The landlord operates a noise nuisance policy. The policy notes the landlord will investigate reports of noise nuisance and may take action such as providing warning letters to any perpetrators in the first instance.

Summary of events

5. It is not disputed that in or around late 2017/early 2018, the local authority proposed to carry out development works in the vicinity of the resident’s property and that its plans included a children’s play area outside of the resident’s property. On or around 21 January 2018, the resident formally objected to the local authority’s plans, but subsequently planning permission was nevertheless granted.
6. In or around July 2020, during the period of construction works on the children’s play area, the resident contacted the landlord to express his concerns that the children’s play area would cause increased noise in the area, and he requested that the equipment (climbing frames, etc.) to be installed in the play area be relocated. On 30 July 2020, the landlord requested he send through any details about where he thought the equipment should be relocated to for its engineers to consider. The landlord also advised that, in deciding where the equipment should be installed, it had to ensure it was done so in line with health and safety guidance and minimum distances to other pieces of equipment were required. It also noted that the number of children using the equipment was considered when approving the planning application. It is not evident whether the resident subsequently provided any further information regarding any proposed relocation of equipment.
7. On 4 August 2020, the resident expressed his concerns that works on the play area were ongoing and had not been halted as per his request. On the same date, the landlord advised that the installation of the play area was a requirement under the planning permission that had been granted. It also gave him information about where the planning permission could be viewed. It advised it had discussed the possibility of moving the equipment with its engineers, and they had agreed to relocate the ‘dendraphone’ (a playable xylophone) further away from the resident’s property. It advised that the other pieces of equipment would have to remain where they were, due to the requirement to maintain safe distances and that it would not be possible to have no equipment outside of his property.
8. On 5 August 2020, the resident reiterated his concerns that the play area would cause excessive noise in the area and that it would be used for the consumption of alcohol in the evenings. On the same date, the landlord advised that the site was a children’s play area and not to be used for the consumption of alcohol any more than any other public space was. It also advised it had investigated his concerns as far as it was able to, and that it would be unable to assist further on this matter.
9. On 27 August 2020, the resident made a formal complaint that the play area would cause excessive noise and that he had requested the works be stopped, which had not occurred. On 3 September 2020, the resident also requested the details of who had made the decision to install a play area in this location, as well as providing the landlord with a news article about a children’s play area in another location which had to be altered due to noise, and an article from ‘Fields in Trust’ noting the preferable minimum distances from residential properties that a play area should be located.
10. The landlord provided its stage one response on 21 September 2020. It again provided information about where the resident could view the planning application and advised that the resident’s objection letter from January 2018 would have been considered by the Local Planning Authority in reaching their decision to install the play area. It also noted it had responded to the resident’s earlier queries in a timely fashion and had advised him that the installation of the play area was required under the planning permission, and it was not able to instruct that the play area not be built. It also noted it had considered the resident’s comments about the relocation of equipment and that it had subsequently relocated the dendraphone to assist him. The resident replied on the same day to express his dissatisfaction with the stage one response.
11. The landlord provided its stage two response on 16 October 2020. It reiterated its earlier comments and that a range of factors, including the impact on residents, had been taken into consideration when the planning permission was granted. It concluded that it could not uphold the resident’s complaint. On 23 October 2020, the resident advised he was dissatisfied with the landlord’s response and noted that the play area had now been opened, and that he considered the level of noise to have been excessive. It is evident from the landlord’s internal communications provided to this service that the play area was opened for a period of two days in October 2020 in error, as the landlord was continuing to investigate the installation of a security fence and gate for the play area, which was yet to be determined. It subsequently instructed the builders to close the play area again until this decision had been reached. It is not evident this was explained to the resident at this time.
12. On 28 October 2020, the landlord noted the resident’s concerns and advised that it escalated his complaint to stage three of its complaints procedure. On 11 December 2020, the landlord apologised for the delay to its stage three response and explained its investigation had taken longer than anticipated. It subsequently provided its stage three response on 15 December 2020. It reiterated its earlier position that the play area was built in accordance with the planning permission and that it considered it an important facility for residents. It also advised that it would be removing the xylophone from the play area prior to its opening.
13. As of 11 May 2021, the landlord has advised the play area is still to be opened due to the need to assess the impact of the security fence foundations on the surrounding trees.

Assessment and findings

14. This service does not have jurisdiction to assess whether correct procedure and legislation was followed by a local authority when granting planning permission. This is because complaints about matters related to planning may fall within the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO). It is evident that the resident is concerned that the local authority did not correctly consider the noise impact when granting the planning permission, however, such a complaint should be raised directly with the local authority planning service and then referred to the LGSCO if necessary. The LGSCO would consider whether the complaint was one that it could consider, taking into account the subject matter and the time that has passed since the planning permission was granted. Alternatively, the resident may wish to seek legal advice on his options in relation to the original planning permission.
15. The Housing Ombudsman’s investigation is focused on the landlord’s investigation of the resident’s concerns and complaint and whether it responded in a timely manner and in line with its policies and procedures.
16. Following the resident’s initial concerns in July 2020 and his request that the landlord assessed whether any of the equipment in the play area could be relocated, the landlord appropriately requested more information about where the resident wanted the equipment to be placed. The resident also requested that works cease whilst this was considered, and while it is not evident that the landlord was under any obligation to cease works, it would have been helpful had it explained this to the resident in order to measure his expectations.
17. Given the resident’s concerns about noise, it was appropriate that it advised the resident that it would relocate the xylophone equipment away from his property. It was also reasonable that it explained that the planning permission required that it install a play area, and that the minimum distances between equipment meant that it was unable to relocate any of the other installations. It was also reasonable that it gave its position that alcohol would not be permitted in the play area, and that it did not consider this to be any more likely to occur than in other public spaces. Given that the resident had reiterated his concerns a number of times and that the landlord had set out its position clearly, it was also reasonable that it advised it would be unable to assist on this issue further.
18. Following the resident’s formal complaint, he provided information about other sites having noise issues, and guidance from ‘Fields in Trust’ about play areas. It is not evident that the landlord was obliged to follow the ‘Fields in Trust’ guidance, nor that the issues with the other site referred to by the resident were applicable to this site. It was therefore reasonable that the landlord did not address these communications, although it would have been helpful if it had made reference to them to explain its position.
19. Given that the resident had queried who had approved the play area, it was appropriate that the landlord referred him to the planning permission granted and gave him information about how to access it. In its formal responses, the landlord also appropriately reiterated its position on the requirement to install the play area and that its responses to his concerns had been timely and thorough. While its stage three response was delayed, the landlord appropriately advised the resident why it was delayed. In the Ombudsman’s opinion, this delay did not constitute service failure, as the delay was not unreasonably protracted.
20. It is evident that the play area was opened for a period of two days in October 2020, following which the resident reported excessive noise. While the landlord’s noise nuisance policy notes that it will investigate reports of noise nuisance, given that the play area was subsequently closed, it would not have been possible for the landlord to have carried out an investigation into the levels of noise. It was therefore reasonable that it did not open an ASB case following these reports, however, it would have been helpful had it advised the resident that it could investigate such reports should the issue reoccur following the opening of the play area, or that the local authority could carry out an investigation into statutory noise nuisance.

Determination (decision)

21. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints regarding its response to the resident’s concerns about the installation of a children’s play area outside of his property.

Reasons

22. As set out above, the Ombudsman cannot consider whether planning permission should have been granted but has considered how the landlord responded to the resident’s subsequent concerns about the installation.  The landlord appropriately advised the resident of its position that it was required to install the play area in accordance with the planning permission and signposted him as to where he could find it. Given his concerns about noise, it also appropriately advised that it relocate the xylophone, which it is not evident it was obliged to do, and that it updated him following its decision to remove the xylophone. It also appropriately set out why it was required to keep the other equipment where it was, i.e. due to minimum safe distances between equipment.
23. While the resident reported excessive noise, given that the play area was subsequently closed and that further alterations to the play area were to occur, it was reasonable that the landlord did not open an ASB complaint at this time.