Summary: Mrs C complains about the Council’s consideration of an application to vary an existing premises licence for a nearby restaurant which she says causes unacceptable levels of noise nuisance and anti-social behaviour. The Ombudsman has found fault by the Council but considers the agreed actions of an apology, £100 and review of procedures are enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about the Council’s consideration of an application to vary an existing premises licence for a nearby restaurant. In particular, Mrs C has raised concerns about the notification process before the licensing hearing and the conduct of the hearing itself. In addition, Mrs C says the minutes of the hearing are inaccurate and the licensing committee did not have full information about previous problems. Mrs C also complains the Council delayed in replying to her subsequent complaint and did not deal properly with all her concerns.
2. Mrs C says because of the Council’s fault she suffers from unacceptable levels of noise nuisance and anti-social behaviour.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

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How I considered this complaint

6. I read the papers provided by Mrs C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Mrs C. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation - licensing

7. The Licensing Act 2003 sets out 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.
8. All businesses and event holders must obtain a licence before they can sell alcohol to the public. The Act sets out the separate types of licence required:

• any business or other organisation that sells or supplies alcohol on a permanent basis needs to apply for a premises licence
• anyone who plans to sell or supply alcohol or authorise the sale or supply of alcohol must apply for a personal licence
• qualifying members’ clubs need to apply for a club premises certificate if they plan to sell or supply alcohol

9. The four licensing objectives set out in the Act are:

• prevention of crime and disorder
• public safety
• prevention of public nuisance
• protection of children from harm

10. The Council is the body responsible for issuing alcohol licenses and is referred to as the licensing authority. Where an application is properly made and no responsible authority or other person makes representations, the licensing authority must grant the application, subject only to conditions in the Act. Responsible authorities include all the bodies whom the applicant is required to notify.
11. If representations are made, it is for the licensing authority to decide whether those representations are relevant to the licensing objectives. If the licensing authority decides that any representations are relevant, then it must hold a hearing to consider them.
12. At a hearing, the licensing authority may:

• grant the application subject to modifying conditions that are consistent with the operating schedule in a way it considers appropriate for the promotion of the licensing objectives
• reject one or more requested licensable activities
• reject the application
• refuse to specify a person as a designated premises supervisor

13. All decisions of the licensing authority, and any conditions imposed, must be relevant to the licensing objectives in the Act (see paragraph 9 above).
14. Where the authority rejects an application, the applicant may appeal to the Magistrates Court. Any rejection must be made by reference to the four objectives. Where the application is granted, with or without conditions, and an objector disagrees with the council’s decision they also have the right to appeal to the Magistrates Court.

Background and legislation - noise

15. The Environmental Protection Act 1990 provides that Local Authorities must take such steps as are reasonably practicable to investigate where a complaint of a statutory nuisance is made. For a noise to count as a 'statutory nuisance' it must:

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

16. 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.
17. 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.
18. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance.
19. 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.
20. 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.
21. 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.
22. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.

Key events

23. The Council received an application to vary a premises licence in October 2018. The application was made by the premises acting on advice from Licensing Officers. The application was sought by the responsible authorities for Health and Safety, Environmental Health and the Community Protection Team to regularise ongoing breaches of the premises licence. The application included an amended plan of the premises and a proposed extension to the licensable hours for the sale of alcohol, late night refreshment and regulated entertainments.
24. The Council notified the responsible authorities about the application in early October and sought representations by 1 November.
25. The Council has provided photographs of the site notice posted to the front entrance of the premises. The Council subsequently extended the public consultation period as it had identified the site notice could not be easily seen by members of the public from the highway. The Council has provided photographs of the site notice subsequently posted to street furniture on the pavement outside the premises. The Council has also provided a copy of the press notices dated 19 October 2018 and its control sheet for the application which show a notification was made on its website.
26. The Council received representations from Environmental Health and the Community Protection Team as responsible authorities objecting to the application to extend the hours of the premises licence. The representations included reference to ongoing complaints of late night noise and potential breaches of the existing licence. The representations set out that visits had identified noise and lights caused an unacceptable disturbance to the neighbouring property. The representations also contained a summary of the reports to the Council’s out of hours service. The Police provided a joint representation with Licensing objecting to the proposed extension to the licensing hours setting out recoded incidents at the premises from 2012 to date.
27. The Council also received a detailed representation from Mrs C objecting to the application. Mrs C’s representation included concerns about anti-social behaviour and incidents of trespass and public disorder which had been reported to the police. Mrs C also reported parking and highway safety issues and noise from the number of people using an outside area and late night music. Mrs C stated bottles were being disposed of after closing time and that she suffered issues of light pollution from halogen spotlights and flashing lights. Mrs C further stated there had been breaches of the current licensing conditions over many years with the possibility of a noise abatement notice being issued. Mrs C also raised an ongoing party wall issue.
28. The representations received were included in the pack prepared for the Licensing Sub Committee together with supporting information and report. The pack included a location plan showing the relationship between Mrs C’s property and the premises, photographs of the premises and its relationship to her property and a plan of the existing layout. The report explained the Sub Committee had to decide the application for a variation only (not a review of the existing licence) against the licensing objectives of:

• the prevention of crime and disorder
• public safety
• the prevention of public nuisance
• the protection of children from harm

29. The report highlighted the application had to be assessed against the relevant guidance and the Council’s Licensing Policy as well as considering the representations received.
30. The hearing was initially scheduled for December 2018. The Council sent Mrs C details of the hearing and procedure in early December. The hearing was subsequently delayed to January 2019 due to the unavailability of the owner of the premises and their legal representative. The Council advised Mrs C of this delay and provided the new date for the hearing in January. The Council provided the agenda and representations to Mrs C ahead of the hearing. Mrs C attended and addressed the hearing.
31. The Committee decided the application at its hearing in early January 2019. The Council wrote to the owner with the outcome of the hearing and provided detailed reasons for its decision.
32. The Committee decided to grant the retrospective application to vary the premises plan to include the extension area as shown on the plan provided and confirmed the number of covers permitted within the licensed area would increase from 60 to 66 subject to the following conditions:

• there would be no speakers situated in the extension area
• there would be no live music played from the extension area
• prominent internal and external signage reminding patrons the premises are in a residential area and noise and disturbance should be kept to a minimum
• the window in the extension should be kept shut after 10pm.

33. The Committee considered the above conditions were appropriate to further the licensing objective of prevention of public nuisance, particularly the prevention of noise nuisance. The Committee refused the application to extend the premises opening hours. The Committee provided detailed reasons for this decision which in summary was that it considered granting this element of the variation would increase levels of noise, disturbance and public safety concerns and these would be detrimental to the wider community including the residents closest to the premises.
34. I am satisfied the Council had enough relevant information and properly considered the representations made to it and the licencing objectives when reaching its decision. This Committee was provided with detailed information including the history of issues at the premises. It was for the Committee to decide the weight to give to the representations made.
35. The Licensing Act 2003 provides a right of appeal for any person who has made representations to the magistrates court. The Council has not provided the Ombudsman with a copy of its decision notification to Mrs C although I note it advised her of the outcome of the application by email dated 16 January.
36. The Council has accepted it did not provide information about Mrs C’s right to appeal as required. This is fault resulted in Mrs C missing her opportunity to make such an appeal. Although we cannot know the outcome of such an appeal the missed opportunity will have caused Mrs C uncertainty about the possible outcome. The Council has advised the Ombudsman that all relevant officers have been advised of this requirement to avoid a recurrence.
37. Mrs C subsequently complained to the Council about the availability of papers ahead of the hearing, the conduct of the hearing itself and the accuracy of its published minutes. The Council provided a detailed response and apology to Mrs C and agreed to amend the published minutes and attendance list of the hearing. The Council published a revised version of the minutes in March and made further amendments to this in June.
38. I have reviewed the detailed issues raised by Mrs C about the hearing process and do not consider these can reasonably be said to have caused her a significant disadvantage at the hearing or have affected the outcome of the hearing itself. In these circumstances, I consider the actions already taken by the Council above provide a suitable remedy.
39. The Council suggested in its complaint correspondence with Mrs C that the situation had improved after the hearing. The Council has not provided evidence for this assertion to the Ombudsman. The Council has confirmed that it has been made aware of several issues at the premises largely relating to noise from the front area of the restaurant late in the evening. Mrs C continues to report issues of noise and disturbance from the premises to the Council.
40. This is clearly an ongoing issue. The Council wrote to the owner of the premises in April and met the owner to discuss the evidence of noise disturbance in July. Following this meeting, the Council sought voluntary changes through a variation of the Premises Licence to include additional conditions about the times of use of the outdoor seating. The owner did not make such an application.
41. The Council has confirmed it is now formally reviewing the premises licence under the provisions of the Licensing Act. This follows receiving an application to do so from the Council’s Environmental Protection team, in response to ongoing failures of the premises to address compliance with issues and complaints being raised by Mrs C. The Council has confirmed it will conclude this review by Monday 9 March and have advised Mrs C of the situation and invited her to submit her own evidence as part of these proceedings.
42. The Council also issued a noise abatement notice on 23 September 2019 requiring the owner to take action to address the late night noise from customers using the outdoor seating at the front of the premises. The notice required the owner to immediately stop using the seating and tables to the front of the premises between 10pm and 7am.
43. For clarity, the Ombudsman has not investigated the Council’s response to Mrs C’s reports about the premises or possible breaches of the abatement notice since the hearing. Mrs C would need to complain to the Council first but it would be open to her to make a new complaint to the Ombudsman if she remained unhappy with the outcome of the Council’s complaint procedure on this issue.

Agreed action

44. The Council has agreed to complete the following actions to provide a suitable remedy:
1. write to Mrs C to apologise for its failure to advise her of her right of appeal and pay her £100 to recognise the missed opportunity and uncertainty this caused within one month of my final decision; and
2. review its procedures to ensure both the applicant and parties that made representations are formally advised of the decision and the associated right of appeal and provide the outcome of this review to the Ombudsman within three months of my final decision.

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Final decision

45. I have completed my investigation as I have found fault but consider the recommended actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman