Summary: Mr X complained about the Council’s response to problems with noise, smells, antisocial behaviour, fire safety, building regulation and planning issues from a café and a restaurant close to his home. The Council failed to properly consider the matters Mr X raised and his complaint about the same, causing him uncertainty, frustration and time and trouble. The Council will apologise to Mr X, pay him £700 and properly consider the matters he complained about.

The complaint

1. Mr X complained about the Council’s response to problems with noise, smells, antisocial behaviour, fire safety, building regulation and planning issues from a café and a restaurant close to his home. Mr X wanted the Council to take action to address the problems which he says have had a major impact on his life.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the police or fire service. (Local Government Act 1974, sections 25 and 34A, 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 documents provided by Mr X and discussed the complaint with him on the telephone.
6. I considered the documents the Council provided in response to my enquiries.
7. Mr X and the Council 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

Relevant legislation

Environmental health

8. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance is something that:
• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and/or
• injures health or be likely to injure health.
9. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smells from industry, trade or business premises
• artificial light from premises

10. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, 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.
11. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
12. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Licensing

13. The Licensing Act 2003 sets out in law which businesses may need a licence to sell alcohol and what type of licence a business may need. The Act also specifies what fees may be charged and how to request a review or make an objection to a licence being issued. The council is the body responsible for issuing alcohol licenses and is referred to as the licensing authority. If the council considers there are reasons to call for a review of a licence, it will arrange a hearing to consider the evidence.

Planning

14. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

(The Town and Country Planning Act 1990, Section 171A)

15. Where the breach involves carrying out development without permission, the authority may serve an enforcement notice. It is for the planning authority to decide if it should take action. (The Town and Country Planning Act 1990, Section 172)

Antisocial behaviour

16. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
17. For example, they may approach a complaint: as an environmental health issue, where the complaint is about noise or pollution; as a planning matter, where the complaint is about an inappropriate use of a building or facility; as a licensing matter, where the complaint is about a licensed premises, such as a pub or nightclub; or using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.

Community Trigger

18. The Anti-social Behaviour, Crime and Policing Act 2014 introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is commonly known as the ‘Community Trigger’ process. When a person requests a review, relevant bodies (which may include the council, police and others) should decide whether the local threshold has been met.
19. If the threshold has been met, the relevant bodies should undertake the review. They should share information, consider what action has already been taken, decide whether more should be done, and then inform the complainant of the outcome. If they decide to take more action, they should create an action plan.
20. We can only consider councils’ actions in an ASB case review. Any contribution made by other relevant bodies, such as the police, is not in our jurisdiction.
21. The Community Trigger should not be treated as an alternative or supplementary complaints process. It is about ensuring authorities consider if there is more they can do to protect a complainant from ASB in the present and future, rather than remedying any fault or injustice from their previous actions.

What Happened

22. Mr X owns and lives in a property on a street that has a mix of residential and commercial properties. There is a café under his property and a restaurant to one side.
23. Mr X had previously complained to a number of departments within the Council about various matters with the café and the restaurant. In October 2020 Mr X collated his complaints about anti-social behaviour and environmental issues caused by the café and the restaurant and sent it to the Council. He said he had gone from department to department to try and resolve his complaint. Mr X complained about:
• Noise and antisocial behaviour
• Strobe and bright lighting in a rear garden causing a nuisance
• Breach of licensing conditions
• Breach of planning conditions
• Breach of building control
• Breach of environmental health and food standards
• Breach of fire regulations
• Violations of rubbish/fly tipping
• Parking violations
24. The Council’s licensing officer responded to Mr X and said there were no licensing breaches to consider for the cafe. They offered advice on how to collect and provide evidence of licensing breaches in relation to the restaurant. Mr X tried to send the Council video evidence but could not do so due to technical difficulties. Mr X contacted the Council about providing the evidence in person but did not receive a response.
25. Dissatisfied with its response to his complaint Mr X contacted the Council. A Council Officer made an application for a community trigger on Mr X’s behalf in June 2021. It set out Mr X’s complaints as outlined in October 2020.
26. The café applied for a licence to serve alcohol in the summer of 2021. Mr X and his neighbours attended the hearing and raised their concerns. The Licensing sub-committee decided to refuse the application. It recorded its concerns as the café owner:
• deliberately did not comply with legislative duties, specifically planning and fire regulations, at the expense of local residents;
• did not present conditions that could help to address the concerns of local residents and appeared uninterested in doing so; and
• had intimidated residents making representations at the meeting.
27. The Council considered the community trigger application and decided that the case met the threshold for a community trigger panel. The panel meeting was held at the end of August 2021.
28. The Council completed a report for the panel. It said it had visited twice but could not establish noise from a fan at the café was a statutory nuisance. It said it had issued a warning to the restaurant about music being played in April 2021 and had not established a statutory nuisance.
29. The Council records show that Mr X and other residents affected spoke at the panel meeting and explained the complaints and the impact on them. Representatives from the Council, and the police also attended and provided their response. The panel recommended that:
• the Council request the fire service carry out a fire safety check at the properties;
• all responsible authorities should be more proactive in attending at the times issues were known to occur;
• the police licensing team, Council licensing team and Council noise team should work together to see if there was enough evidence to support a review of the restaurant’s licence terms;
• Mr X and other residents should organise their evidence chronologically to support a review of the restaurant’s licence; and
• the residents should seek legal advice about action against the owner and management company of the buildings.
30. Mr X emailed the Council in October 2021 about evidence he had collated to support a licensing review, which included the videos he had tried to provide in 2020. Mr X emailed the Council again in December 2021. He stated he had not heard anything since the community trigger panel. He complained the Council’s planning, environmental, food standards and waste department had either not responded or had not taken any action about his complaints.
31. Mr X complained to us in February 2022. He raised the complaint outlined in paragraph one. We asked the Council to consider Mr X’s complaint.
32. The Council responded to Mr X in April 2022. It said it recognised Mr X was making a complaint of two parts. The first about the community trigger process, and the second it defined as:

“[Mr X] expressed dissatisfaction in the way the anti-social behaviour and environmental issues reported to the various council departments about [the restaurant] and [the café] have been dealt with, and as a result the issues have continued, and [Mr X has] continued to feel fear for [his] well-being and safety within [his] home.”

33. The Council responded to Mr X only in relation to the community trigger process complaint. It said:
• it had a significant increase in community trigger applications and was unable to follow up on the recommendation of the panel meetings as a result and had not kept Mr X updated;
• It should have taken action following Mr X’s October 2021 email, but did not;
• the panel should have provided a single point of contact for each relevant service for Mr X to send follow up emails to; and
• it had broadly adhered to the community trigger process.
34. It gave an overview of the action taken on the panel recommendations. It said it had not had any noise complaints since October 2021. It had completed a licensing visit to the restaurant mid-evening in October 2021 and March 2022. It had now (March 2022) requested a fire safety check.
35. Mr X responded to the Council and asked it to consider the complaint at stage two of its complaint procedure. He said it had not responded to all the points of his complaint.
36. The Council upheld its previous complaint response. It said the panel could have benefitted from input from its building control and planning departments, and it was unclear if the panel considered mediation or enforcement under anti-social behaviour legislation. It apologised for delays in updating Mr X. It offered mediation between Mr X and the restaurant and the café. It said as a result of Mr X’s complaint it would review the community trigger policy and procedures.
37. The Council said that in relation to the community trigger process, since Mr X’s complaint it had:
• created a new role of Neighbourhood Support Officer to oversees the coordination of Community Triggers, and this officer is the point of contact from application to review of recommendations;
• introduce a review process where recommendations are made to update on actions taken around these recommendations; and
• re-drafted the Community Trigger policy which is currently waiting to be approved. The Council would provide training on this policy when it is ready.

My findings

38. Mr X had been contacting the Council since 2019 about the two commercial premises. His complaints were specific and wide ranging, and he had collated evidence to support them.
39. The purpose of the community trigger panel is for relevant bodies to share information available to it and identify an appropriate response to the problem complained about. Mr X provided evidence in 2020 which the Council did not consider. The Council did not present the findings of the licensing sub-committee that the café owner did not comply with the legislative duties to the panel. The Council said it also did not provide information on building control and planning to the panel. There is no evidence the Council gathered and provided information to on the planning, building control, environmental health, food standards, rubbish violation and parking violations Mr X complained of. Without the information the panel could not properly consider the enforcement powers available to it. That was fault and leaves uncertainty about what actions the panel may have recommended, had the Council provided sufficient information.
40. The panel identified the Council should; be more proactive and attend at times ASB was known to occur; request a fire safety inspection of the premises; and consider if there was sufficient evidence for a licence review. The records show it completed two visits in five months, which were not at the relevant times. It did not request a fire safety check, or the second visit, until Mr X had complained to us. Mr X again tried to provide evidence for the restaurant licence review, and the Council did not review this evidence. I cannot say the outcome would have been different had it complete these actions, however the failure to carry out the identified recommendations in a timely manner was fault and caused Mr X frustration.
41. Mr X complained to the Council about the lack of communication between its departments and response to his complaint in 2020 and in December 2021. He raised the same in his complaint to us. We asked the Council to consider that complaint. There is no evidence the Council considered this element of Mr X’s complaint. That was fault and caused Mr X further delay and time and trouble in pursuing his complaint. I have now considered that matter and the evidence shows the Council’s communication with Mr X was poor and it failed to respond to him. There was poor joint working between the departments which is why not all the information was available to the community trigger panel. That was fault and caused Mr X further frustration and distress.

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Agreed action

42. Within one month of this decision the Council will:
• write to Mr X and apologise for the uncertainty, frustration, distress and delay and time and trouble caused to him and pay him a symbolic amount of £700 to recognise the same; and
• reconvene a community trigger panel with information from all relevant Council departments and consider all elements of Mr X’s complaint as he set out in October 2020, it should also include any new and relevant issues that have occurred in the interim. The relevant Council departments constituting the panel should consider all enforcement powers available to them under the relevant legislation.
43. Within three months the Council will provide us a copy of the re-drafted community trigger policy and the associated training schedule, which will include training for Council staff and relevant partners.
44. The Council will provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. I found fault leading to injustice and the Council has agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman