Bristol City Council (18 018 247)

Category : Environment and regulation > Licensing

Decision : Not upheld

Decision date : 30 Jul 2019

The Ombudsman's final decision:

Summary: Mr X complains about issues related to a café near his home. The Council has investigated his concerns. There is no fault with the actions of the Council, and we have closed the case.

The complaint

  1. Mr X complains about a café near his home. He says the Council has not done enough about:
    • the café’s tables and chairs on the highway; and
    • the extractor fan which is too noisy and emits unpleasant odours.

Back to top

What I have investigated

  1. Mr X has longstanding complaints against the café opposite his home. I have seen correspondence and information dating back from 2011. My investigation focuses on the matters investigated by the Council from 2016-2019. These matters are continuing complaints and I am therefore exercising my discretion to investigate them.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. 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 a council’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)
  3. If we are satisfied with a council’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)

Back to top

How I considered this complaint

  1. I have considered:
    • Mr X’s complaint and supporting information;
    • The Council’s response to Mr X and to my enquiries.
  2. I have written to Mr X and the Council with my draft decision and considered their comments.

Back to top

What I found

Legislation and Guidance

  1. Councils have a duty to investigate the potential for statutory nuisance under the Environmental Protection Act 1990.
  2. The Highways Act 1980 Part VIIA Section 115 A-K sets out the legislation which covers Provision of Amenities on Certain Highways. This says councils may grant a licence for tables and chairs under 115E. It also says councils have enforcement powers but these are not duties and are discretionary.
  3. Planning permission is required to place tables and chairs on the public highway, which includes the pavement. If a piece of land has been used for a specific purpose for a long time, it is recognised as an established use. In these cases, a Council may decide not to take planning enforcement action.
  4. The Council has published Guidelines on Outdoor Seating Areas for Commercial Premises on Public Pavement/Highway Land. The guidance states it provides practical guidance and is not adopted policy.

What happened

  1. Mr X lives in a terraced house, on a narrow quiet street, opposite a café. The street is located in an inner suburb of a large city.
  2. Mr X’s complaint can be split into two parts:
        1. the tables and chairs on the highway; and
        2. the noise and odour from the extractor fan.

The tables and chairs on the highway

  1. From the evidence I have seen, it appears the café has placed outdoor tables on the highway since 1997. Mr X said that people complained but the Council never resolved the issue. In November 2016 Mr X contacted the Council to establish whether the café has a licence to place tables and chairs on the highway. In December, the Council confirmed that it had not issued a licence for the cafe to use tables and chairs on the highway. Mr X provided the Council with photos showing the seating arrangement and the proximity of passing cars. This matter continued to form the basis of correspondence between Mr X and the Council over the following years.
  2. In 2018, the Council responded to Mr X’s stage 1 complaint. It again confirmed that it had not given approval or permission for the tables and chairs under highways or planning legislation. It said it was not something the Council would actively seek to enforce against. The Council said its Guidelines on Outdoor Seating Areas for Commercial Premises on Public Pavement/Highway Land document informed its position on the matter. The Council exercised its discretion in line with highways and planning legislation.
  3. Mr X complained to the Ombudsman the tables and chairs are still in the road and on the narrow pavement. He sent me photographs to illustrate the problem.

The noise and odour from the extractor fan

  1. In 2017, the owner of the café installed a new extractor fan system for the kitchen. Mr X reported to the Council the fan was noisy and emitted odours. He also said it has been running overnight. He raised concerns the owner had installed the fan illegally, without planning permission.
  2. The Council visited the café and reported the fan seemed to be in working order and did not appear to be a statutory nuisance. Mr X said he remained concerned about the fan. The neighbourhood enforcement team investigated the noise issues related to the extractor fan.
  3. As part of its investigation, the Council contacted the café owner. The owner provided details of the fan and seemed keen to resolve the issue. The Council reminded the owner the fan should not run overnight. The owner apologised and said he would ensure that he enforced ‘shut down procedures’.
  4. The Council carried out a British Standard 4142 (BS4142) noise assessment of the extractor fan. It confirmed, with the noise of the fan was 4dB above background level. It said this was below the threshold rating for considering further enforcement action. It went on to say that +5dB was likely to be an indication of an adverse impact, depending on the context. The Council identified the context as:
    • the street being a mixture of commercial and residential;
    • there being a clear history of a café operating at the premises with an extraction system in the same position as this one;
    • the extraction system not disturbing Mr X at night (except when it was accidentally left on); and
    • there only being one complainant.
  5. In August 2017, the Council concluded that considering the rating results and the context, it was satisfied that a Statutory Nuisance did not exist.
  6. Mr X reported the extractor fan to planning enforcement. The planning enforcement team confirmed the fan did not need planning permission.
  7. In February 2018, Mr X contacted the Council again. He reported that he was not satisfied with its investigation. He also reported the fan had been running overnight. The next day, the Council contacted the café owner to remind him of his obligation to turn off the fan at night.
  8. The Council wrote to Mr X and explained unless there is a considerable change in the times of operation, it would not reopen the case. It sent Mr X diary sheets to log the noise in order to determine whether the times of opening had changed significantly.

Mr X’s complaint

  1. In October 2018, Mr X complained to the Council about both the issues identified above. The Council investigated Mr X’s complaint.
  2. In its response, the Council said it had considered potential infringements of planning, highway and licencing provisions. It also considered its recent environmental health investigation into the extraction equipment used at the premises. The Council found no failings in its application and enforcement of each form of regulatory legislation. It did not uphold Mr X’s complaint. It signposted Mr X as to how to raise concerns in the future if he has reason to suspect any breaches of control.
  3. Mr X was unhappy with the Council’s response and requested it be escalated to Stage 2.

The Council’s further investigation

  1. The Council responded to Mr X’s request for a stage 2 investigation. It agreed to set up a new case to consider Mr X’s concerns regarding the noise and odour from the extraction equipment.
  2. The Council visited the café in October. It reported the noise level of the fan to be 4.5dBA above the background noise. This was when the speed is set to level 3 which the owner confirmed he rarely used.
  3. The Council concluded again that a statutory nuisance did not exist. It acknowledged that should the speed of the fan be used at level 5; the noise would be significant (16.5 dB above background noise). The Council issued the cafe owner a Community Protection Warning Notice to ensure he keeps the fan speed no higher than level 3.
  4. The Council also provided Mr X with diary sheets for him to log the disturbances he experiences from the fan odours. It was agreed that this would be better carried out in the warmer months when he is more likely to have open windows.
  5. In December 2018, the Council noted it had not received any further complaints for Mr X. The Council closed its case. Mr X said he did not need to complain over the winter months as his doors and windows were closed.
  6. In February 2019, Mr X complained to the Ombudsman.

Analysis

  1. Mr X is deeply unhappy with the café and the associated noise and smells. I cannot question how these matters make Mr X feel. I can only investigate the actions of the Council to determine whether he has suffered an injustice as a result of the findings and actions of the Council.
  2. The Council has thoroughly investigated Mr X’s concerns. It has visited the café several times. It has remained in frequent contact with Mr X over the years and has responded to his concerns in a timely manner. In addition, it has remained in touch with the café owner in order to follow up concerns raised about the fan, specifically, if it is running overnight.
  3. Planning, Highways and environmental protection enforcement is discretionary. The Council has considered all the information presented to it when reaching its decisions not to take enforcement action. I cannot question the Council’s decision, only the way it was reached.
  4. The Council has:
    • issued a warning notice to the café owner regarding the speed of the fan;
    • warned the café owner about running the fan overnight; and
    • issued diary sheets to Mr X for him to log the odours.
  5. The Council has fulfilled its statutory duty in terms of investigating Mr X’s concerns. It has used appropriate legislation and guidance to inform its decisions. It has considered all the information presented to it. As such, there is no fault in the actions of the Council.

Back to top

Final decision

  1. There is no fault in the actions of the Council. I have closed the case.

Back to top

Parts of the complaint that I did not investigate

  1. I have not considered the process around the original or amended licence applications. These were granted in 2013 and 2014. The restrictions set out in paragraph 3 apply meaning I cannot investigate these matters. The Council also considered these issues to be out of time for its complaint procedure.
  2. I cannot investigate a complaint about the start of court action or what happened in court. I have not investigated the information relating to the Magistrate’s Court. I acknowledge that Mr X’s appeal against the café’s licence was withdrawn before it reached court.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings