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Calderdale Metropolitan Borough Council (19 018 968)

Category : Environment and regulation > Licensing

Decision : Upheld

Decision date : 08 Jun 2021

The Ombudsman's final decision:

Summary: the complainant Miss X complained the Council failed to use its legal powers to enforce licence conditions, prevent nuisance or breaches of planning control. The Council said it acted in line with its officer’s professional judgement following up complaints and encouraging the person who changed the use of the neighbouring property, to present a planning application. We find the Council acted with fault and the Council has agreed a remedy.

The complaint

  1. The complainant who I shall refer to as Miss X complains the Council failed to properly and within a reasonable time use its enforcement powers to resolve unauthorised activity in her neighbour’s property.
  2. Miss X says the Council’s failure to use its powers led to her experiencing noise nuisance, inconvenience and distress and damage to her property.
  3. Miss X wants the Council to recognise its faults and the impact this had on her.

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The Ombudsman’s role and powers

  1. 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)
  2. If 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

  1. In considering this complaint I have:
    • Contacted Miss X and read the information presented with her complaint;
    • Put enquiries to the Council and studied its response;
    • Researched the relevant law, guidance, and policy.
    • Shared with Miss X and the Council a draft decision and reflected on their comments before making this final decision.

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What I found

The law, guidance, and policy

  1. The complaint involves several of the Council’s statutory roles: planning, licensing, and environmental protection. Each area has a separate legal framework setting out the Council’s powers. We expect councils to liaise between departments and act corporately, so they ensure they consider all the powers available to them.
  2. The Licensing Act 2003 sets out the Council’s powers to grant a licence for serving alcohol by businesses. When considering an application, the Council must consider the four objectives set out in the Licensing Act. They are preventing crime and disorder; public safety; prevention of public nuisance and protecting children from harm. Where the application is considered at a hearing the Council may grant a licence subject to any conditions it considers appropriate. All conditions must be relevant to the objectives set out in the Licensing Act. An applicant must notify the local environmental health authority of their application so they may present representations to the licensing committee. Anyone objecting to the Council’s decision may complain to the Magistrate’s Court.
  3. The Environment Protection Act 1990 places a duty on councils to take reasonable steps to investigate potential statutory nuisance. This may be noise from property, smoke from property, smells from industry, trade or businesses and artificial light.
  4. To count as a statutory nuisance the action must:
    • Unreasonably and substantially interfere with the use or enjoyment of a home, and/or
    • Injure health of be likely to injure health.
  5. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (here an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise recording equipment, or undertake site visits.
  6. Once officers have completed gathering evidence, they will assess the evidence. They will consider among other issues the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.
  7. Under the Town and Country Planning Act 1990 councils control the use and development of property. Where a council finds there has been a breach of planning control it may take enforcement action. Government guidance recommends councils consider inviting a planning application to regularise a breach. This gives the Council the opportunity to publicise the application and to fully consider all material planning considerations before deciding if the use is acceptable in planning terms for the site.

What happened

Licence for business

  1. In 2017, Miss X’s neighbour who runs a business from the neighbouring property applied for a licence to sell alcohol. The Council’s Environmental health section offered no objection to or comments on the licence application. The Council’s licensing sub committee imposed a condition on the licence to prevent public nuisance. The condition imposes a duty on the licence holder to show the commercial use is inaudible in the nearest noise sensitive property. The licence says it for the Council’s environmental health officer to decide if the applicant has met the condition.
  2. The Council’s environmental health officers did not know of this condition. An Environmental Health Officer said in June 2017 the condition is unenforceable. Therefore, he advised the licence holder to apply for a variation in the licence to have the condition removed. They could also apply to the Magistrate’s Court.

Environmental health response to breach of licence condition and complaints of nuisance.

  1. Miss X contacted the Council in March 2018 to ask why it had not yet visited the property to check the licensee had complied with this licence condition.
  2. In response to my enquiries the Council confirmed it had not visited the neighbouring business. It says it did not visit because Miss X had not complained to the Council the use is audible. The Council says it is for those managing the neighbouring business to ensure inaudibility by managing any noise. Without any complaints of noise nuisance, the Council says it has not visited the building to assess any noise, asked Miss X to complete diary sheets or offered her recording equipment.
  3. Following a report of a vermin infestation the Council’s environmental health officers visited but found no evidence of an infestation and so closed the case.
  4. In autumn 2018 Miss X complained of black smoke coming from her neighbour’s chimney which caused discomfort in her home. The Council sent a letter to the neighbour about the use of unauthorised fuels in a stove or log burner. The Council followed up the letter by contacting Miss X to see if there had been any improvement. Miss X said her neighbour still burnt items in his stove. The Council took no further action because it says it received no further complaints.
  5. Miss X says she experienced harassment from her neighbour but on referral to the police they took the matter up with the courts and so the Council withdrew.
  6. In response to my enquiries the Council says its standard procedure for dealing with noise complaints is to contact the complainant and gather information about when the noise takes place. The Council will then contact the business to try and resolve the matter. Normally the Council asks the complainant to keep notes and update the Council if there is no improvement. The Council recognises that did not happen here. Instead, it provided informal advice. Officers did not log this in case notes or follow it up with written advice.

Planning – change of use

  1. The Council’s planning department researched the approved planning use of the neighbouring property. Before July 2019, the approved use was that of a Shop, or a Class A1 use under the Town and Country Planning (Use Classes) Order 1987. The property’s current use fell within Class A3 and B1 and therefore the occupier had changed the use of the property without planning permission. This put the occupier at risk of enforcement action by the Council.
  2. Before exercising its enforcement powers, and in line with government guidance on using an informal approach before issuing a formal notice, the Council contacted the business owner. The owner explained how they used the property. Following discussion with the planning officers in January and February 2019, the business owner applied for planning permission to approve the change of use.
  3. The Council publicised the application through a site notice but did not receive any objections from the public or Miss X. The Council’s Environmental Health department recommended imposing a condition restricting the hours of business to protect the amenity of neighbouring residents.
  4. The Council granted permission in July 2019. Government guidance recommends councils do not take formal enforcement action while actively considering a planning application that may approve the use. Now the Council had given planning permission for the use the Council could not issue enforcement notices.

Analysis – was there fault causing injustice?

  1. My role is to consider whether the Council considered and exercised its powers under each of its separate legal frameworks without fault. It is not to decide if a statutory nuisance existed or challenge the Council’s grant of planning permission or say if the licence holder had broken a licence condition. If I find the Council acted with fault, I must decide what impact that had on Miss X and what the Council should do to address that impact.
  2. The licensing committee may impose whatever conditions it believes are necessary to meet the licence objective. However, conditions should be clear and enforceable. Once the Council granted the licence the Council had a duty to consider if it should enforce those conditions. The Council did not follow up whether the applicant had met condition and that they had installed soundproofing measures. I find the failure to follow up the condition between 2017 and 2019 as fault.
  3. If Miss X could hear noise from the business that would be a breach of the condition. The Council says it does not have any evidence of audible noise disturbing Miss X and so could not enforce the condition. The Council’s officer described the condition as unenforceable. Applying an unenforceable condition to a licence I find as a fault raising Miss X’s expectation of greater protection.
  4. Miss X says she experienced disturbance from the business. The Council did not record advice it says it gave to Miss X on how to record and report noises that may cross the threshold of a statutory noise nuisance. It is only when noise crosses that threshold the Council may consider exercising its powers to issue a notice. I find the Council at fault for not keeping proper records of the advice given and which of its powers the advice concerned. Further it failed to follow up any informal advice with a letter setting out that advice for Miss X’s future reference including what she needed to do to report further incidents.
  5. From the information presented however, I find it is unlikely the Council would have found any noise crossed the statutory nuisance threshold. Therefore, I find on the balance of probabilities but for the fault the Council would not have taken formal action. That lessens the injustice to Miss X.
  6. Similarly, the Council has power to control nuisance caused by fumes and smoke when someone burns unauthorised fuel in a stove or wood burner. The Council visited the neighbouring home to identify the smoke. The Council then wrote a letter to the owner explaining what they could and could not burn. Officers did not find the smoke met the threshold of a statutory nuisance and therefore could not follow up the letter with an enforcement or abatement notice. I find the Council acted in line with usual procedures and acted without fault in response to the complaint of smoke or fume nuisance.
  7. Following Miss X’s complaint, the Council investigated if her neighbour had changed the use of the property without planning permission. The Council followed government guidance and its own procedures by inviting the business owner to apply for planning permission. This gave the Council an opportunity to consider all material planning considerations before deciding whether to grant permission. The Council publicised the application giving neighbours such as Miss X the opportunity to object. I find the Council acted without fault in considering the planning application. On granting the planning permission the use became approved. Therefore, it was no longer subject to the Council’s enforcement powers. The Council could now only enforce the conditions attached to the planning permission.
  8. Miss X experienced injustice from the Council’s raising her hopes of protection from the licence condition which the Council says it could not enforce. Further the Council took no action between 2017 and 2019 to research whether a breach had occurred. Miss X did not receive formal written advice on the Council’s powers to investigate and control statutory nuisance. The Council did not invite Miss X to complete diary sheets to report noise nuisance. I find all these failings as fault. When deciding a remedy, we try to place people in the position they would have been but for the fault we have found. Sometimes that is not possible and so we recommend an apology, a symbolic payment and further action. In deciding what remedy to recommend I have considered the Council’s view on the likelihood of the disturbance meeting the threshold of a statutory nuisance although we shall never know that for certain.

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Agreed action

  1. To address the injustice to Miss X I recommend, and the Council agrees to within four weeks of this my final decision to:
    • Give a written apology to Miss X;
    • Pay Miss X £150 in recognition of the impact of the delay and lack of action;
    • Set out in writing the powers available to the Council and what Miss X will need to do if she wishes to report anti-social behaviour or nuisance caused by noise, smoke, or fumes in future.

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Final decision

  1. In completing my investigation, I find the Council acted with fault causing injustice for which it has agreed a proportionate remedy.

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Investigator's decision on behalf of the Ombudsman

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