The Ombudsman's final decision:
Summary: There was delay by the Council in responding to concerns about a licensed premises. This led to an unnecessary period when the amenity of Mr X, who lived directly opposite, was adversely affected. The Council has apologised and resolved the issues with the premises. The Council should make a financial payment of £100 to Mr X to acknowledge his additional time and trouble and inconvenience.
- The complainant, whom I shall refer to as Mr X, complains about the Council’s failure to vary a licence for a public house opposite his home; about its failure to investigate breaches of the current licence and about delay in responding to his complaints. Mr X says that because of the Council’s fault he was subjected to unnecessary noise nuisance and anti-social behaviour.
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What I have investigated
- I have investigated Mr X’s complaints made to the Council in 2020. I have not investigated previous complaints about the same premises in 2018 because this was too long ago. Mr X could have brought these complaints to the Ombudsman sooner.
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The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- 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
- I have read the papers provided by Mr X and discussed the complaint with him.
- I have considered the relevant law and guidance.
- I have considered the Council’s Licensing policy.
- 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
- 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.
- The Act has four licensing objectives:
The Council is responsible for issuing alcohol licenses 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 which are consistent with the operating schedule and relevant mandatory conditions in the Act. A business or premises can change any aspect of their licence by applying to the council for either a full or minor variation. A full variation would be required where a business wants to increase the hours it sells alcohol and a minor variation may apply where a premises intends to reduce the hours or make small changes to its layout. Members of the public or other businesses can make representations on applications for licences and variations but only in relation to the licensing objectives. Members of the public can also call for an existing licence to be reviewed if they have concerns about the licensing objectives. If the council considers a request for review is valid it will arrange a hearing to consider the evidence. A licence is not required for live music or the playing of recorded unless certain conditions are met. A licence from the council is required under the Highways Act 1980 to place tables and chairs on the pavement. Licences may include restrictions, for example about the size of furniture, where it can be placed and the space to be allowed for passing pedestrians. If premises do not get a permit the Council can require them to remove the furniture from the pavement. In Summer 2020 the Government relaxed planning rules to it cheaper and quicker for premises to obtain a pavement licence during Covid-19. The Environmental Protection Act 1990 provides that councils must take such steps as are reasonably practicable to investigate where a complaint of statutory nuisance is made. For noise to amount to statutory nuisance it must:
- Prevention of crime and disorder
- Public safety
- Prevention of public nuisance
- Protection of children from harm.
It is for council officers to judge when something becomes a statutory nuisance. Councils will rely on suitably qualified environmental health officers to gather evidence, for example diary sheets by complainants and site visits. Often councils will offer an out of hours noise service for people to contact if a nuisance occurs outside normal working hours. Once the council has gathered evidence it will assess whether a statutory nuisance exists. If it finds it does, it must issue an abatement notice. Councils can also take informal action if the issue complained about is causing a nuisance but is not at the level of a statutory nuisance, or where the noise is from a premises the council may delay service of an abatement notice for a short period to try and address the problem informally. A member of the public can take private action against an alleged nuisance in the magistrates’ court. The Government has issued Guidance Alcohol Licensing available on the www.gov.uk website. This says that all premises must have a designated premises supervisor who has day-to-day responsibility for the running of the business and is the primary contact for local government and the police. The guidance says any person or business may make representations on new licences, variations or reviews. The Council has issued a Licensing Policy that sets out its approach to licensed premised including addressing anti-social behaviour.
- Unreasonably interfere with the use or enjoyment of a home or other premises
- Injure health or be likely to injure health.
- Mr X moved into a house directly opposite a public house. Mr X says this changed hands a few times and in 2017 changed from an old fashioned ‘pub’ to a new style bar/restaurant with an events room.
- Mr X complained to the Council about concerns he had with the changes in 2018 including speakers by the main door amplifying live music.
- He complained again in July 2020 about the premises providing seating on the pavement. Mr X said there were about ten people seated and about the same number standing outside. Mr X said he was not aware a pavement licence had been granted. Mr X said the pub was keeping the doors open and noise levels had increased since the pub had reopened after the Covid-19 ‘lockdown’.
- Mr X told the Council he considered the premises should have been subject to a full variation application given the extent of changes in 2018. He wanted to know whether:
In August Mr X wrote again as he had not received a reply. He said the pub had opened without trying to transfer the licence to the new ownership or ensuring they had a Designated Premises Supervisor although he understood this was now in motion. He again said he did not understand how the pub was allowed tables outside and that the footpath was regularly being blocked and the pub was serving outside allowed hours. Mr X wrote again a week later asking the licensing team to check the terms of the licence were being complied with and asking the Council to carry out a review of the venue’s suitability. Mr X also complained his complaints were not being responded to. The Council’s licensing team responded in mid-September confirming the premises did not have a pavement licence but did have a beer garden. The Council provided a copy of the licence to Mr X which set out the allowed hours. The Council confirmed the Government had relaxed rules about consuming drinks outside but confirmed this did allow premises to cause a public nuisance. The Council advised Mr X how to report noise or anti-social behaviour and would advise the premises about the complaint. Mr X was unhappy with the response and said the premises did not have a beer garden and was using the public footpath for tables and chairs and he still wanted this investigated as well as his other questions answered. The Council:
- Such premises should allow amplified music systems
- A closing time of midnight on Fridays and Saturdays was suitable on a residential street
- Alcohol should be consumed outside the premises and after 9pm
- Noise levels needed to be checked and modified by insulation
- A door supervisor was required to limit anti-social behaviour and noise
- There should be provision for smokers instead of blocking the road and footpath.
Mr X replied that he still felt his concerns about noise and out of hours sales were not being properly considered and that he considered a full variation application should have been considered when the venue changed. The Council said it would raise Mr X’s concerns with the new operator who had applied to transfer the licence in July, and Mr X should report noise when it happened. The Council wrote again in October that Highways was investigating the use of the pavement, it had discussed concerns with the venue and would visit to check whether the layout had changed. The Council said it would not recommend review of the licence as the licensee needed to be given an opportunity to address the issues raised. By this time the Government’s Covid-19 restrictions meant the venue had to close at 10pm. In mid-October the Council confirmed it had done a site visit but there were no tales and chairs outside and no loud music or other issues of concern. The Council said it would visit again to check the position was the same. The Council confirmed the layout had changed from that attached to the premises licence as the garden was now a kitchen and the toilets relocated. It had asked the premises to remedy this. The Council explained its usual practice was to try informal action and only start a review if warnings were not heeded. The Council explained individuals could also ask for a review where there were grounds to do so. Mr X confirmed the pub had removed the tables and chairs but felt this should have happened sooner. Mr X wanted to know more about the further action the Council may take to remedy breaches of the licence. The Council said it had investigated Mr X’s complaints and would continue to do so when the venue reopened when Covid-19 restrictions were lifted and venues returned to usual hours. It said the tables and chairs had been removed, there was no loud music, and the layout would be remedied by a variation of the licence. The Council acknowledged it should have investigated Mr X’s concerns sooner. The Council sent a final complaint response in October 2020 which upheld his complaint there had been delay in responding to his concerns about the change of layout and use of the pavement. The Council said it intended to do a further site visit when normal opening resumed in case its previous visit had not given an accurate picture. The Council repeated Mr X could report noise at any time through the noise nuisance service and could request a formal review of the licence as an individual. Mr X replied that he was glad his complaint had been upheld and accepted the Council’s apology. Mr X said he felt the matter was not resolved and that he had tried to contact the noise nuisance service but received no reply. In December 2020, Mr X told the Council he had reported concerns on 20 July but the Council had not checked if the venue had a pavement licence until 21 September and did not do a visit until October. In December, the noise team confirmed it had received Mr X’s complaint in September but due to reassignment of officers during Covid-9 had not yet investigated it. It advised Mr X to use the out of hours noise service while acknowledging it was running a limited service. Mr X asked for his complaint to be escalated. The noise team did reply to Mr X in January 2021 confirming it had monitored the venue for Covid breaches in December and issued a warning letter and would also be making further visits. The Council provided its final complaint response about the noise team on 5 February. It explained that Covid-19 work was taking priority over noise complaints in line with a Government Directive Delivering Local Authority Regulatory Services Over Winter 2021. Mr X made representations when the venue applied to vary its licence. He was invited to give evidence at the hearing. The application was granted with four additional conditions (which reflected some of Mr X’s concerns). The Committee noted that some points raised by objectors were more appropriate to a review, which this was not, and the Committee could only consider the variations which limited their role and discretion. The Committee suggested the Council monitor the premises and work with the licence holder to ensure the conditions were complied with. Mr X told me that as well as the delay he found the Council dismissive and at times hostile when he raised complaints.
- said it would refer the issue of tables and chairs to the Highways team,
- repeated how Mr X could report noise nuisance or anti-social behaviour,
- said transfer of a licence did not require public consultation,
- explained the rules for regulated entertainment and opening hours,
- said it was good practice for doors and windows to be shut during entertainment,
- said a door supervisor was not considered necessary when the licence was granted,
- said it was the responsibility of the venue to ensure patrons did not block the highway,
- said during Covid-19 use of outside space was encouraged and the Government had allowed sale of alcohol for consumption off the premises.
- The Council accepted it had been at fault not to investigate Mr X’s allegations immediately which led to delay before tables and chairs were removed from the pavement.
- I find that Mr X did need to persist with raising concerns before action was taken.
- I do not criticise that the Council gave out of date information about the layout. Mr X told me he thought the Council should check the premises annually when annual fees are received. I am not aware of any legal requirement for councils to do so, councils do carry out spot checks on premises and respond to concerns raised by the community or police. When Mr X explained the Council was wrong about the layout, the Council did do a site visit.
- I acknowledge Mr X felt the tone of the Council’s response was not always helpful, however, the process to vary the licence has given Mr X the opportunity to have his concerns heard by the Committee, which were taken seriously as additional conditions were imposed on the licence. The Committee also commented that the Council should perhaps have carried out a review. The Council did advise Mr X he could request a review, but Mr X did not do so.
- Mr X raised concerns about changes to the layout, some of these had an impact on Mr X’s amenity but some internal changes did not cause him an injustice.
- In summary, the Council’s delay in carrying out a site visit and taking informal enforcement action did lead to a period when Mr X’s amenity was adversely affected. Once the Council did intervene, the tables and chairs were promptly removed. It is reasonable to assume this would have happened sooner if the Council had acted on Mr X’s concerns immediately.
- The Council has already apologised to Mr X for the delay, and he has accepted its apology. Mr X’s concerns about the premises have now been considered through the variation process. The Council has also agreed to check the premises again when Covid-19 restrictions are lifted. This is an appropriate response to Mr X’s complaint. There is no significant outstanding injustice to Mr X. Mr X’s only unremedied injustice relates to his time and trouble getting the Council to deal with his concerns.
- Within four weeks of my final decision the Council will make a payment of £100 to Mr X to acknowledge the additional time and trouble getting his concerns resolved and to acknowledge that earlier action may have reduced the period when his amenity was adversely affected by the actions of the premises.
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- There was delay by the Council in responding to concerns about a licensed premises. This led to an unnecessary period when the amenity of Mr X, who lived directly opposite, was adversely affected. The Council has apologised and taken action to now monitor the premises. This is a satisfactory resolution to the complaint.
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Investigator's decision on behalf of the Ombudsman
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