Summary: We will not investigate this complaint about the Council’s failure to taken enforcement action against a local pub for breach of planning control for breaching the premises licence. We have not seen evidence of fault in the Council’s actions to justify an investigation.

The complaint

1. The complainant, who I shall refer to as Mr J, complains the Council is allowing a local pub to breach planning and licensing law. He wants it to stop protecting the pub.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating
• further investigation would not lead to a different outcome
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered information provided by Mr J and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council confirms decking outside the pub does not benefit from planning permission. However, following an investigation, the Council decided it is not expedient to take enforcement action requiring its removal. Having considered the matter, this is a decision the Council is entitled to make.
6. The premises licence for the pub does not include the decking area outside. It cannot be used for consuming alcohol other than by residents of the property above the pub.
7. However, the Council confirms the Business and Planning Act 2020 came into force in July 2020. This allowed temporary variation of premises licences. The temporary period initially expires September 2022.
8. The Act allows an automatic extension to premises restricted to on-sales only to allow the sale of alcohol for consumption off the premises. This means the pub close to Mr J’s home may sell alcohol in open container. Patrons can consume the alcohol on the outside decking until the end of September 2022.
9. The Council also confirms the pub has applied to vary its premises licence to allow drinking outside beyond September 2020. Mr J can make comments on the application for the Council’s consideration.

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Final decision

10. We will not investigate Mr J’s complaint because there is insufficient evidence of fault in the Council’s actions because:
• The Council has considered the breach of planning control but is satisfied it is not expedient to take enforcement action against the decking. This is a decision it is entitled to make.
• The Business and Planning Act 2020 allows the pub to sell alcohol for consumption off the premises until the end of September 2020. Therefore, the Council cannot act against the pub for allowing customers to drink on the deck outside the pub.

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Investigator's decision on behalf of the Ombudsman