Summary: There was no fault in the Council’s decision to licence several bars and restaurant to install parklets for external dining, near the complainant’s home. Although it accepts this has caused some problems with waste disposal, we do not consider this now causes an injustice to the complainant. We are also now satisfied with the action the Council has taken to address the complainant’s concerns about littering and anti-social behaviour.

The complaint

1. I will refer to the complainant as Miss D.
2. Miss D complains about the Council’s decision to licence several bars and restaurants on her road to install parklet terraces for outside dining. She complains the Council failed to consult residents about a decision to extend the bars and restaurants licences, and also says they cause:

• problems with litter and waste collection;
• noise and anti-social behaviour;
• difficulties with crossing the road; and
• damage to parked cars due to the narrow road.

3. Miss D seeks a reversal of the Council’s decision to permit outside dining.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I reviewed Miss D’s correspondence with the Council, the Council’s licensing decision documents, and sought an update from the Council on its approach to the waste collection problems.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. Miss D lives on a road in the Council’s area. The road is predominantly residential, but there is a section mostly made up of bars, restaurants and other businesses.
9. Because of the COVID-19 pandemic, and in common with many other local authorities, the Council licensed several of the bars and restaurants to install parklets for outdoor dining. These are small terraces which take up a parking space on the road. The aim of this was to allow bars and restaurants to increase their capacity, while maintaining social distancing, and thus assist in their recovery from lockdown and other restrictions.
10. In 2021, the Council agreed to extend the parklet licences until the Autumn of 2022.
11. Miss D subsequently complained about this decision to the Council. She said it had not sought or accepted the views of residents before making the decision, and complained the parklets had led to an increase in noise and anti-social behaviour in front of her residential building. She also complained the parklets caused problems with litter and waste collection, and said their location now made it difficult for pedestrians to safely cross the road. Miss D said another local authority had decided to end a similar arrangement it had made, and criticised the Council for not making the same decision.
12. In its response to Miss D’s complaint, the Council refuted it had not consulted residents or considered their objections. It explained these had formed part of the licensing decisions. The Council also said its noise nuisance team had not received any complaints about the bars and restaurants, and that it was satisfied there was adequate space to allow pedestrians to safely cross the road.
13. The Council did acknowledge there were problems with waste collection from the bars and restaurants. It said it was investigating how to address this problem and asked for Miss D’s patience while it did so.
14. After completing the Council’s complaints procedure, Miss D approached the Ombudsman in December 2021.

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Legislative background

Statutory nuisances

15. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
16. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

17. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.

18. 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.
19. 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.
20. 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.

Abatement notices

21. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
22. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
23. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Analysis

24. For clarity, I will address each point of Miss D’s complaint separately and in turn.
25. First though, I will explain that the Ombudsman’s role is to review how councils have made decisions. We might criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or failed to properly explain a decision. We do not, however, make operational or policy decisions on councils’ behalf. We do not offer a right of appeal against council decisions, and we cannot uphold a complaint simply because somebody does not agree with what a council has done.

Consultation with residents

26. Miss D complains the Council failed to consult with residents, or take into account their views when granting the licences.
27. I have reviewed the Council’s licensing documentation, which include site notices setting out the application, and officers’ reports showing the Council’s consideration of the applications. I note the site notices include instructions on how interested parties may register comments or objections on the particular application in question. The officers’ reports include the text of objections and comments the Council received during the application process, and explain the rationale behind the Council’s decision to grant the applications.
28. It is not possible to consolidate this with Miss D’s complaint the Council failed to consult with residents or ignored their objections. On the contrary, it demonstrates the Council did seek residents’ views in the normal way, by inviting comments on the site notices, and also that it considered them as part of its decision-making process.
29. I understand Miss D does not agree with the Council’s decisions. This is her right, and I do not expect my finding here to change her mind. However, the Council was entitled to decide the grant the licences, despite receiving objections, and so the fact it has done so does not mean it was at fault. We have no grounds to criticise the Council for this.
30. I will add that the fact another local authority has decided to stop outdoor dining in part of its area does not mean the Council must do the same here. Each local authority must make decisions as it sees best for its own jurisdiction, and one authority’s decision does not set precedent for others to follow.
31. I find no fault in this element of Miss D’s complaint.

Litter and waste collection

32. As I understand it, there are two aspects to this problem – that external dining means customers are creating additional litter on the street, and that the location of the parklets means the bars and restaurants cannot leave their bins directly outside their own premises for collection, and have been leaving them next to the parklets instead.
33. The Council accepted this was a problem in its correspondence with Miss D, and said it was working on a solution. I therefore asked it for an update. In response, the Council said:

“Council officers working with our waste contractors changed our waste collection arrangements in respect of the commercial parades at the northern end of [Miss D’s road] following reports from residents and local business that the installation of the parklet terraces had made previous arrangements (the presentation of waste directly in front of premises) untenable and that the placing of waste adjacent the terraces was causing problems. Council officers arranged for the waste to be presented adjacent to [a particular bar]. This meant that collections have been taking place from the [main road adjoining Miss D’s road]. This arrangement has not been without problems either so arrangements are being kept under review pending the removal of the terraces in the autumn.”

34. It is not clear what exactly are the ongoing problems the Council speaks of in its response, nor what the Council means by keeping the arrangements under review. Either way, it is clear the Council has been unable yet to provide a full solution to the difficulty with waste collections.
35. However, given the collections are now being made some distance from Miss D’s property, and from a different road, I am not persuaded this represents an injustice which is significant and particular to her. This is an important factor we must consider when determining whether to continue an investigation, and on this basis, I do not propose to investigate this issue any further.
36. In my draft decision on this complaint, I found fault with the Council in relation to the other issue here, that of an apparent increase in littering. This was because I could not see the Council had taken any action to address this, despite its apparent recognition it was a problem. I recommended the Council investigate and devise an action plan about the littering.
37. In its response to my draft decision, the Council clarified it had not agreed with Miss D about the littering, and its recognition there was a ‘problem’ was solely in relation to the waste collection issue. However, it had investigated and visited the site anyway, and provided evidence to support its view there was no littering problem.
38. On balance, I still consider there was some fault by the Council, because it has accepted there were (and still are) problems with waste collection arising from the placement of the parklets. But, as I have explained, I do not consider this represents an injustice to Miss D. I am also now satisfied the Council has properly addressed the littering issue as well.
39. I find fault, which did not cause injustice, in this aspect of Miss D’s complaint.

Noise and anti-social behaviour

40. Miss D complains the addition of parklets causes problems with noise and anti-social behaviour (ASB) outside residential properties on the road. The Council responded to this point to say its noise team had received no recent complaints of this nature.
41. The first point I must make here is that, regardless of the situation with the parklets, my own research on the internet shows a section of the road has been dedicated to bars and restaurants (alongside other businesses) for a long time. It appears inevitable this would lead to more disturbance than could be expected on an entirely residential street; and, while likely noise and ASB are factors the Council must take into account when considering any type of premises licence, we would also expect prospective residents to consider this before choosing to purchase or rent a property in such a location.
42. This said, I can also appreciate why the addition of outdoor dining facilities might trigger an increase in disturbance by customers, particularly in the evening or late at night.
43. In my draft decision on Miss D’s complaint, I expressed concern the Council said it had not received any recent complaints about noise and ASB on the road. This was because, while I understood the Council may not have received any complaints through its dedicated nuisance reporting system, Miss D had just made an equally valid noise and ASB complaint through its corporate complaints process. I criticised the Council for overlooking this, and recommended it now contact her to discuss the matter, and if necessary, open an investigation under its normal procedure.
44. In its response to my draft decision, the Council explained it had now taken several steps to investigate the noise and ASB issue. It said:

“A number of pro-active site visits to [the area] have been carried out by officers from several Council teams over the few weeks [sic].

“Officers from our licensing, parking and noise and nuisance teams have visited to check compliance with the council’s requirements regulating the parklets and the associated premises. Noise and nuisance officers have monitored for any evidence of excessive noise, general nuisance and anti-social behaviour from the parklets. A senior licensing officer has visited and engaged with local businesses to raise awareness of the issue.

“Some minor issues related to a delivery and refuse awaiting collection were noted during these visits. However, compliance has generally been very good and no antisocial behaviour has been witnessed. 

“Our CCTV team reviewed the ‘Vemotion’ camera location on [the main road] at the Junction with [a separate adjoining road]. They reported no trace of any anti-social behaviour on the evening of the 20th April but did not have a clear view of [one of the licensed premises on Miss D’s road].

“The Noise & Nuisance Team, Licensing Team and our Warden Service will continue to monitor the area. A Head of Service has also offered to meet with local residents and businesses to listen to their concerns and importantly to devise solutions.”

45. I note the Council does not say it has contacted Miss D direct, which was part of my recommendation. And I question, in particular, the value of the review of the CCTV footage, given it was of only one, single, weekday evening, and without a clear view of the relevant area.
46. However, taking together everything the Council has said, I am again satisfied it has now taken reasonable steps to address this issue. It is encouraging the Council has visited local businesses to check compliance and ensure they are aware of the issues being raised, and to meet with local residents to discuss any concerns they have. If Miss D still wishes to raise her concerns with the Council, this will be an opportunity for her to do so.
47. And, importantly, I note the Council says it has not witnessed any ASB itself.
48. I appreciate Miss D might disagree with this assessment. But it is not for me to make my own decision whether there is actionable noise nuisance or ASB happening in the area, nor to direct the Council to enforce against it. My role here is simply to ensure the Council has considered the evidence it has received, and the options open to it, before making a decision what to do, and I am now satisfied with the actions it has taken in this respect.
49. Again, I will still make a finding of fault here, because I consider the Council did not properly handle Miss D’s initial complaint about noise and ASB. But, on the new evidence I have seen, I no longer consider this represents a significant injustice to her, nor that there is any further recommendation for me to make.
50. I find fault, which did not cause injustice, in this aspect of Miss D’s complaint.

Difficulty crossing the road

51. Miss D complains the position of the parklets means it is difficult for pedestrians to cross the road, and that she must now often walk to “either corner” to do so. In response, the Council said it is satisfied there is space for pedestrians to cross safely, and that the majority of pedestrians cross at the end of the road anyway, near the junction with the main road.
52. Regardless of the merits of the Council’s response, I am not persuaded Miss D has a valid complaint here. On any road, and at any time, it is always possible that one particular location may be more dangerous as a crossing point than others; it is for individuals to ensure they choose carefully before crossing. Pedestrians do not have an automatic right to cross the road wherever they wish, and there is no duty on local authorities to ensure pedestrians can cross wherever they wish. So the fact that someone may have to walk a short distance further to cross the road safely does not mean the local authority is at fault.
53. And, even if the Council were at fault here, I would not accept having to walk a short distance further, in order to cross the road safely, represents a significant injustice requiring the Ombudsman’s intervention anyway.
54. I find no fault in this element of Miss D’s complaint.

Damage to parked vehicles

55. Miss D complains parked cars often suffer damage from passing vehicles, because of the narrowness of the road.
56. I will not investigate this point for several reasons. First, and most important, Miss D did not raise this a point in her complaint to the Council, which is something she must do before it is eligible for investigation by the Ombudsman.
57. Second, I note Miss D does not suggest her own vehicle has suffered damage, and damage to other people’s vehicles does not represent an injustice to her, regardless of any other considerations. So, even putting to one side the fact she did not raise this point in her complaint to the Council, it is unlikely we would choose to investigate it.
58. Third, I cannot perceive, and Miss D has not explained, how this relates to the Council’s decision to licence parklets. I understand the parklets take up some of the available parking spaces on the road; but this does not mean the road has become narrower. There is no obvious reason why the existence of parklets would cause cars parked elsewhere on the road to be damaged by passing traffic.
59. I have discontinued my investigation of this element of Miss D’s complaint.

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Final decision

60. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman