Summary: Mr X complains about the Council’s handling of his complaints about noise nuisance, antisocial behaviour, and breach of licence conditions regarding a pub near his property. We find fault with the Council for not properly considering Mr X’s complaints about antisocial behaviour. We do not find fault with the Council’s actions in relation to Mr X’s complaints about noise nuisance and breach of licence conditions. We have made recommendations.

The complaint

1. Mr X complains about the Council’s handling of his complaints about noise nuisance, antisocial behaviour, and breach of licence conditions regarding a pub near his property between July 2020 and July 2021. Mr X also complains about the representations raised at the licensing revision subcommittee hearing in 2018. He says the comments provided were not actually what he raised.

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What I have investigated

2. We have investigated Mr X’s complaints noise nuisance, antisocial behaviour, and breach of licence condition complaints between July 2020 and July 2021.

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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 spoke with Mr X and considered the information he provided.
7. I made enquiries with the Council and considered the information it provided.
8. I sent a draft decision to Mr X and the Council and considered their comments.

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What I found

Environmental Protection Act 1990

9. Statutory nuisances are defined in section 79 of the Act 1990. A statutory nuisance could include noise emitted from premises so as to be prejudicial to health or a nuisance.
10. Under the Act, councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances. To be considered a statutory nuisance, they must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
• injure health or be likely to injure health.
11. Under the Act, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
12. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity, and location of a nuisance when deciding if it is a statutory nuisance.

The Council’s enforcement policy

13. This policy details the procedure the Council will following when deciding what enforcement action is necessary and proportionate. It highlights the Council will actively work with businesses to advise and help with compliance.
14. The policy notes the Council will deal with minor contraventions through advice or support.

What happened

15. Mr X lives near a pub. The pub’s licence has some conditions, including:
• All windows and doors to be closed when regulated entertainment is taking place, doors to be opened only for access and exit.
• Using the outside drinking area will end at 10.00pm.
• The designated premises supervisor or responsible person to ensure the outside drinking area is checked regularly to discourage any inappropriate behaviour.
• The designated premises supervisor or responsible person to ensure the outside drinking area is cleared of customers at 10.00pm.
16. In July 2020, Mr X raised a complaint with the Council about the pub not following its licence condition to keep the doors shut. Mr X told the Council the pub was propping its side doors open.
17. The Council told Mr X it would contact the pub manager to resolve the issue. The Council said it asked the pub management to close the side doors.
18. Mr X contacted the Council again to note the pub was still leaving its side doors open. Mr X told the Council anti-social behaviour inside the pub can be clearly heard when the doors are open.
19. The Council told Mr X it would issue a written warning to the pub. The Council also told Mr X the licencing team had confirmed the only condition they can enforce is the requirement for the door to be closed when regulated entertainment is taking place. The Council offered to install noise monitoring equipment in Mr X’s property to try and establish whether the doors being left open is causing a statutory nuisance if the problem persisted.
20. Throughout July 2020, Mr X continued to contact the Council to advise when the pub was leaving its side doors open.
21. Near the end of July 2020, the Council told Mr X it had contacted the pub. The pub advised their COVID-19 risk assessment required the door was left open. The Council confirmed if this was the case, this would take precedent over Mr X’s noise complaints. The Council also told Mr X the pub was not breaching its licence conditions as they were not holding live music events.
22. In August 2020, Mr X contacted the Council several times to report further noise nuisance from the pub. The Council sent a letter to the pub highlighting the complaints received on breaches of licence conditions. The letter asked the pub to follow the conditions.
23. In December 2020, Mr X contacted the Council to raise concerns the pub was not following COVID-19 restrictions. The Council told Mr X pub was not in breach of any COVID-19 restrictions as it could remain open if table meals were served with alcohol.
24. In February 2021, Mr X made another complaint about noise nuisance from the pub and about the pub not following its licence conditions. Mr X asked the Council to remind the pub the outside should be checked and cleared by 10.00pm. The Council told Mr X it had noted his concerns and would check the pub when it reopened.
25. In May 2021, Mr X contacted the Council again to raise concerns about the pub breaching its licence conditions and of noise nuisance. Mr X told the Council he wanted the licence revoked. The Council asked Mr X to complete a nuisance diary for two weeks to allow the Council to understand what the issues are.
26. Mr X told the Council he would not complete the nuisance diary as he had previously filled them out and felt the Council would just ignore the completed sheets. Mr X also confirmed he could not fill out the form as his spelling and writing was not good.
27. Throughout June 2021, Mr X sent the Council several emails detailing incidents of noise nuisance and breach of licence conditions.
28. The Council visited the pub three times in June 2021. The records noted the following observations during the visits:
• Visit one – music was low, and windows and doors open for ventilation. Pub was fully compliant on COVID-19 guidance.
• Visit two – visit completed at 9.20pm. Low level noise, customers were following COVID-19 guidance, windows open for ventilation.
• Visit three – visit completed after 10.00pm, garden was closed. Officers witnessed licensees try to quieten individuals.
29. The Council also sent a warning letter to the pub. The letter set out the conditions on the premises licence and noted the Council had received several complaints. The Council asked the pub to follow the licence conditions.
30. In July 2021, the Council contacted Mr X and asked to meet with him to take a statement. The statement was to go through the issues and concerns he had raised. The Council said this would help it identify if it could take any further action against the pub. The Council said Mr X declined this.
31. In response to our draft decision, Mr X provided evidence he did not decline the meeting to take a statement. Mr X provided a copy of an email where he agreed to the meeting but said he would have a think about what to say before the meeting as he knew he would ramble. However, it is not clear why the meeting did not go ahead.
32. Throughout July 2021, Mr X continued to send the Council emails detailing incidents of noise nuisance, antisocial behaviour, and breach of licence conditions. The Council visited the pub five times in July 2021. The records noted the following observations during the visits:
• Visit one – visit completed between 9.50pm and 11.00pm. No breach of licence conditions. Outside drinking area was not being used during the time of the visit.
• Visit two – no issues found during time of visit at 9.00pm.
• Visit three – visit completed 10.14pm. No live entertainment and noise was not an issue. Windows were open in the bar area. Officer noted the premises was fully compliant with COVID-19 guidance.
• Visit four – visit completed 10.22pm. All windows closed and no noise from the premises, no live entertainment. No one present in the garden.
• Visit five – visit completed at 10.03pm. All windows noted to be open for ventilation. No music noises. At one point, there were around ten people gathered outside but this generated low level of noise.
33. Mr X contacted the Council twice in August 2021 to report he was being intimidated by the management of the pub. The Council told him to report the matter to the police. Mr X also told the Council he did not want the monitoring equipment installed as it would cause further arguments with pub management.
34. The Council sent Mr X a complaint response at the end of August 2021. The Council highlighted the action it had taken to investigate his concerns and that it had visited the premises on several occasions in June and July 2021. The Council confirmed these visits did not evidence any noise issues or incidents that would suggest breach of licence conditions and so it could not take any further action against the pub.
35. The Council outlined the options available to Mr X to allow the Council to gather the evidence it needed to take further action. The Council confirmed the following options were open to Mr X:
• To complete a log sheet with specific dates and times or to meet with an officer to take a statement.
• Allow the Council to install noise monitoring equipment in his property so officers can decide whether there is a statutory nuisance.
• Call for a licencing review.
36. In September 2021, the Council contacted Mr X to see if he would allow it to install noise monitoring equipment. Mr X declined the offer.
37. In October 2021, the Council contacted the Police to find out whether Mr X had reported his concerns of intimidation and antisocial behaviour. The Police confirmed that since January 2021, Mr X had reported five incidents.

Analysis

38. The evidence shows Mr X has complained consistently about three issues related to the pub. These are noise, breach of licence conditions, and antisocial behaviour directed towards him.
39. The evidence shows Mr X contacted the Council sporadically throughout 2020 and early 2021. On balance, we are satisfied this was likely due to the COVID-19 pandemic lockdowns and the fact the pub was likely shut for a while between July 2020 and May 2021. Therefore, we consider this would have made it difficult for the Council to gather consistent evidence of any breach of licence conditions, noise nuisance, or antisocial behaviour.
40. Despite this, there is evidence the Council took some informal action to address Mr X’s concerns with the pub. The Council wrote to the pub and advised them of the importance of following the conditions attached to their licence. This was in line with the Council’s enforcement policy.
41. From May 2021, Mr X started to contact the Council more often with his concerns. This was likely due to the easing of lockdown restrictions.
42. Again, the Council has evidenced the steps it took to investigate Mr X’s concerns. This included completing several visits to the pub to witness the noise nuisance or breach of licence conditions. The Council has also offered to install noise monitoring equipment in Mr X’s property, to meet and take a statement from him, and asked Mr X to complete a noise nuisance diary. Mr X has declined some of these options.
43. Therefore, we are satisfied the Council has taken all reasonable steps to investigate Mr X’s complaints about the noise nuisance. We do not find fault with the Council’s actions.
44. The Council explained to Mr X it cannot take any further action against the pub due to a lack of evidence. Therefore, the Council has communicated with Mr X effectively in outlining the options available to him. It is open to Mr X to work with the Council to explore the options to allow the Council to gather evidence.
45. Finally, with regards to Mr X’s reports of antisocial behaviour, the evidence shows Mr X’s concerns were about the behaviours of customers and friends of the pub managers.
46. Intimidation and harassment are criminal matters which are fundamentally for the police to address. Therefore, we do not consider it was inappropriate for the Council to advise Mr X to report this to the police. However, the Council has its own powers to tackle antisocial behaviour.
47. Therefore, even where it has signposted a complainant to the police, the Council should still consider whether the behaviours reported by Mr X amounted to antisocial behaviour. If the Council decided the behaviours did amount to antisocial behaviour, the Council should then have decided on the appropriateness of using its powers to address the behaviour. I see no evidence of that here and this is fault.
48. We consider the fault identified has caused Mr X some uncertainty. This is because we cannot say whether the Council would have decided the behaviours Mr X reported would amount to antisocial behaviour if it had properly considered the matter at the time. We also cannot say what action the Council would have taken if it did consider the behaviour amounted to antisocial behaviour.
49. As Mr X has reported the behaviours some time ago, we do not consider it will be proportionate for the Council to now consider whether the behaviours Mr X reported amounted to antisocial behaviour. However, if Mr X raises any future concerns about antisocial behaviour, the Council should consider the reports he made in 2020 and 2021 before deciding on what action, if any, to take.

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Agreed action

50. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
• Apologise to Mr X for failing to properly consider whether the behaviours reported by him amounted to antisocial behaviour and the uncertainty this has caused him
• Pay Mr X £100 to recognise the uncertainty caused by the fault identified.
• The Council should provide relevant staff with training and/or guidance on the Council’s relevant powers under the 2014 Act. These are:
1. The power to issue community protection notices (CPN).
2. The power to make a public spaces protection order (PSPO).
3. The power to close premises for a specified period of time.
4. The power to apply to the courts for a civil injunction.
51. The Council should complete the above within four weeks of the final decision.

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Final decision

52. We find fault with the Council for failing to properly consider whether the intimidation and harassment behaviours Mr X reported amounted to antisocial behaviour. We do not find fault with the Council for how it considered Mr X’s concerns about noise nuisance and breach of licencing conditions.

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Parts of the complaint that I did not investigate

53. We did not investigate Mr X’s complaint about the representations raised at the licensing revision subcommittee hearing in 2018 as it is unlikely any investigation into this point will identify fault with the Council’s actions. This is because while the Council did not put forward Mr X’s objections in the manner he wanted, the available evidence shows the Council provided the committee with Mr X’s objections about noise nuisance, breach of license conditions, and antisocial behaviour.
54. We have not exercised discretion to consider Mr X’s complaints about the way the Council deal with his concerns between 2018 and June 2020. This is because the available evidence shows the Council responded to Mr X’s complaints. As there is no good reason for why Mr X could not have complained to the Ombudsman earlier, we consider his complaint is late.

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Investigator's decision on behalf of the Ombudsman