Summary: Ms X complained about noise and nuisance from a restaurant below her home. She said the restaurant is in breach of licencing conditions and the Council has failed to take enforcement action. Ms X also complains the Council’s communication has been poor as it often failed to respond or update her. The Council was at fault for poor communication, delays, and for allowing noise nuisance and licensing issues to drift.

The complaint

1. Ms X complained about noise and nuisance from a restaurant below her home. She said the restaurant is in breach of licencing conditions and the Council has failed to take enforcement action through its licensing or environmental health teams, despite acknowledging breaches and noise nuisance.
2. Ms X also complains the Council’s communication has been poor as it often failed to respond or update her.
3. The noise and nuisance impacted Ms X and her family’s enjoyment of their home.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with an organisation’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. As part of the investigation, I considered the complaint and the information Ms X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Ms 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

Legislation and guidance

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
10. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises
11. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
12. 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.
13. 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.
14. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
15. 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.
16. 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.
17. 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.
18. 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.
19. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

What happened

20. I have summarised below some key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
21. Ms X lived above a shop. The entrance to Ms X’s home is at the side of the shop. The shop closed and the Council granted permission for the new occupant to open a restaurant in 2021. The restaurant’s licence came with several operating conditions, including:
• Alcohol may only be served to customers seated at tables. No more than 5 customers seated at the bar. No more than 25% of customers on the premises to consume alcohol without a table meal.
• Alcohol may only be served to customers seated at the bar who are waiting for a table.
• Waiter or waitress service only for food and drinks.
• CCTV must be installed.
• CCTV images must be retained for 31 days and made available on request.
• A physical barrier must be used to mark the boundary of the area outside the premises where customers are allowed.
• Licence holder to take appropriate measures in respect of the void between the ceiling and the property above to mitigate noise.
• Deliveries must only take place between 9am and 5pm.
• Waste collections must only take place between 9am and 5pm.
• Disposal of bottles and broken glass into bins outside premises must only take place between 9am and 5pm.
22. In August 2021, Ms X complained to the Council about noise from a refrigeration unit of the restaurant, as well as from its beer coolers, and from the front door slamming. She also complained about odour and grease from a ventilation unit.
23. The Council met with the restaurant owner in September 2021 to discuss the issues. Also in September, the Council visited Ms X’s home to assess the noise.
24. The Council gave Ms X nuisance logs to complete. Between September and October 2021, Ms X recorded multiple instances of noise from the restaurant caused by loud music, talking, doors slamming, the beer chiller, and tables and chairs banging. The noise was mainly in the evening, between about 6.30pm and 11pm. Sometimes the noise went on after 11pm.
25. The Council wrote to the restaurant owner in October 2021. It said odour and grease deposits from the restaurant’s ventilation unit was causing a statutory nuisance. It told the owner to hire an engineer to inspect the system, determine the cause, and abate the nuisance.
26. The restaurant owner said they had a service and maintenance contract for the extraction unit but were unaware of odour complaints. They said the beer coolers are new and do not need servicing. They also said they would fit a soft closer on the door.
27. The Council inspected works carried out to the extraction unit in November 2021. It then wrote to the restaurant owner on 14 November. It said, following its visits, it determined there is an odour nuisance from the extraction unit. It said the owner must hire a professional to abate the nuisance and forward reports to the Council in 21 days.
28. The owner said they would turn off the extraction unit when it was not in use and a professional was booked to look at it on 1 December.
29. At the restaurant owner’s request, the Council provided a list of noise consultants the owner could contact about insulation between the properties.
30. Later in November 2021, the restaurant owner told the Council they could not repair the extraction unit. This was because an engineer needed access to a shared roof to carry out the work, and the landlord of the building would not grant permission due to safety concerns.
31. The Council said it would revisit the issue once access was allowed. For now, it accepted the restaurant owner could not move forwards.
32. The Council wrote to the restaurant owner on 3 December 2021. It said, following allegations of noise nuisance, it visited the site and monitored on 1, 21, and 29 October and on 12 November 2021. It determined there is a statutory nuisance due to the volume of music and length of time played for. It served an abatement notice and asked the restaurant owner to do the following by 28 January 2022:
• Hire a noise consultant.
• Control the level of music.
• Install soft close door brackets.
• Cover the whole ceiling area with 100mm dense mineral wool.
• Fit anti-vibration brackets and noise hoods over the external air conditioning unit.
33. The restaurant owner told the Council the extraction company had carried out maintenance work. They also said the only noise consultant with availability was for January 2022.
34. Ms X contacted the Council on 17 December 2021 and reported the maintenance work on the extraction unit had failed. It still leaked and still smells.
35. The Council said, until the landlord allowed access to the roof, it is unable to take action to ask the owner to fix the issue.
36. In January 2022, Ms X complained about restaurant customers smoking outside her home. She also complained about planters outside the restaurant fixed to posts with cable ties. She said this breached the Council’s pavement licence standard conditions.
37. Ms X complained to the Council on 29 January about the restaurant being full and noisy after 11pm.
38. Environmental health officers visited Ms X and the restaurant owner on 4 February to assess the noise following the abatement notice.
39. Ms X emailed the Council the next day. She said progress was made regarding the loud music, but the general noise issue was unresolved. Ms X said there was still noise from loud chatter, doors banging, and tables and chairs being moved. She also raised the issue about soundproofing the ceiling void. Ms X said the void contained cables, so they could not see why access was an issue. Ms X was not aware of any soundproofing having been done so far. She said the ceiling voids were still empty.
40. On 8 February 2022, Ms X confirmed to the Council that their landlord gave permission for the restaurant owner to access the roof to repair the extraction unit.
41. The Council’s environmental health service said it was consulting with its licensing service to decide the next steps and would update Ms X once a decision is made.
42. Later in February, Ms X reported noise caused by a delivery and a bin collection both taking place early in the morning, in breach of the restaurant’s licence conditions. Ms X also reported access to her home was blocked by tables, chairs, bikes and pushchairs.
43. On 18 February 2022, the Council’s environmental health service told Ms X the licensing service would now move forward with enforcement of licensing conditions. That will include soundproofing the ceiling void. The licensing service would update Ms X soon.
44. The Council wrote to the restaurant owner on 22 February 2022 about public nuisance including noise and odour, and about opening beyond the hours allowed in the restaurant’s licence. It said CCTV showed customers still present at 23:28. There were also complaints about times of deliveries, collection of waste bins, disposal of bottles and glass, and outside furniture in use beyond allowed times. The Council reminded the restaurant it can revoke its licence for breaches or public nuisance.
45. On 27 February 2022, Ms X reported noise nuisance from the restaurant at 9:30pm due to singing, loud music, and banging of chairs and bar stools. She said the restaurant was not serving food.
46. The Council told Ms X it visited the restaurant and reminded them of their duties to obey licence conditions. It also confirmed the planters were not causing an obstruction and could remain.
47. In March 2022, Ms X reported noise from restaurant staff taking out rubbish after 10:30pm. She said the Council needed to take action, as the restaurant ignored warnings and reminders. She accepted the planters caused no obstruction, but said the boundary was wrong and encouraged customers to smoke outside their entrance. Ms X also asked the Council what was happening with sound proofing.
48. The Council said it recently visited the restaurant to discuss licence conditions, including sound proofing the void, and the requirement to obey conditions. It told Ms X to continue to report noise to its environmental health service.
49. The Council emailed the restaurant owner on 22 March 2022, following a meeting at the restaurant. The Council recognised the restaurant stated it had soundproofed the front half of the ceiling void, but it needed access to the property above to do the work on the rear half and it was reluctant to do so. The Council reiterated that it was a condition of the licence to soundproof the whole ceiling void and it expected the owner to do this.
50. The restaurant owner emailed the Council on 26 April 2022 to confirm the agreed steps to manage noise. They included:
• Adding layers of insulation to the bar.
• Repositioning the speakers.
• Limiting the sound level on the speakers.
51. In August 2022, officers from the Council’s licensing and environmental health services discussed the noise issue. The licensing service was considering removing the need for the restaurant to soundproof the void between the properties, as it was considered unachievable. The environmental health service questioned whether the Council could agree to change the licence knowing there were complaints about noise. They questioned whether the restaurant owner had provided any expert reports confirming the work could not be done.
52. The environmental health service worried it would have to ask Ms X to complete noise logs again and carry out monitoring. And that would be months after deciding there was a nuisance considered best dealt with under the terms of the restaurant’s licence. It was also concerned about whether it could move forward with the case if the licence condition was unenforceable.
53. Ms X complained to the Council on 12 September 2022 about its lack of action over the various reported issues with the restaurant. She said:
• The Council had not replied to her concerns, and it should have resolved the problem by now.
• Her family suffered nuisance from the restaurant for over a year.
• The restaurant had still not soundproofed the ceiling void despite this being a condition of its licence and the Council should therefore revoke the licence.
• The Council served a noise abatement notice, but they still do not know what is happening about this.
54. The Council responded 3 October 2022. It said it acted on Ms X’s emails and did communicate with her on some of the matters she reported. However, it accepted it did not always keep her informed and apologised for this.
55. The Council confirmed it issued an abatement notice about noise from the restaurant’s extraction unit, not noise from the restaurant. It said investigations into complaints about licence breaches and noise from the restaurant itself remain ongoing. Once completed, the Council will consider the most suitable action and advise Ms X of the result.
56. The Council wrote to the restaurant owner on 13 October 2022 about an allegation the restaurant opened outside the hours of its licence on 27 August 22. It said CCTV supported the allegation and showed customers still in the restaurant until 00:02. The Council also said it received a complaint the restaurant hosted a private party on 17 September 2022 causing noise nuisance.
57. Ms X asked the Council for a stage two complaint consideration 19 October 2022. She said the Council had not answered all her complaint and gave a generic response. She also said the Council failed to set out a plan or timeline for complaints to be rectified.
58. Ms X repeated the many individual points of complaint already raised and said she only once received a reply. She said 18 months on there is still noise because of the lack of soundproofing. Two officers visited her home and confirmed there was a noise nuisance, but from the Council’s response it seems this was not acted upon.
59. The Council produced a draft action plan for the restaurant, about the noise and other issues, on 21 October 2022. It planned to discuss this with the restaurant owner at a meeting on 24 October.
60. The Council wrote to the restaurant owner on 4 November 2022. It was concerned the restaurant had not complied with a request for CCTV recordings and this prevented further investigation into the alleged breaches. It was also concerned that, despite writing on 8 October 2021 and issuing a written warning on 23 February 2022, the restaurant breached conditions on the outside seating area. The Council said this was a final written warning.
61. The Council sent its final complaint response on 1 December 2022. It said:
• Officers met the restaurant owner several times to remind them of their responsibilities and the consequences of failure to follow the conditions of their licence.
• It sent a warning letter in March 2022 and an action plan was agreed at a meeting in November 2022 to address the noise issues. It sent a final warning letter in November 2022.
• Both licensing and environmental health services took several steps to deal with the issues Ms X raised.
• Its environmental health service established a statutory nuisance did exist because of noise from the restaurant and activities carried out in it. The Council served an abatement notice on 3 December 2021 requiring noise from music and an external air conditioning unit to abate by 28 January 2022. The restaurant carried out works to the air conditioning unit and it took steps to address nuisance from music by setting an agreed volume level with officers and repositioning speakers.
• It served a second abatement notice on 17 March 2022 regarding noise from the restaurant’s extraction ventilation and filtration system. The owner experienced problems gaining access to address the nuisance and the Council gave them more time. However, despite some works, the owner has not complied with the abatement notice and the Council is preparing a file for prosecution.
• Officers have worked with the owner to develop a plan of action to engage a noise consultant to survey the restaurant with a view to designing a scheme of works to address the noise.
• Once officers started to investigate it became clear that soundproofing the ceiling void would not on its own be enough to deal with the issues Ms X experienced. Noise and vibrations would still likely pass through parts of the floors and walls were not insulated.
• The owners have been resistant to engage, but there are issues making dealing with the noise more difficult. The ceiling is at different levels and the windows could interfere with ceiling insulation. There is also an issue with different owners and occupiers of the building, meaning there may need to be agreement between all parties before any works. As such the licence condition about soundproofing is, in its present form, unenforceable. That is why the Council has dealt with the noise through an abatement notice and through encouraging the owners to carry out insulation works.
• It hoped its response addressed its previous failure to properly advise Ms X of the actions it took. The issue is a complex one and officers continue to act and make progress to address the concerns raised.
62. In February 2023, Ms X reported the restaurant was running as a bar, selling only bar snacks, and was no longer a restaurant.
63. The Council contacted the restaurant owner. The owner said they decided to review their menu after a downturn in trade. They said customers in the main were seated by staff and a server goes to the table to take orders. Some customers do approach the bar though. They said customers generally pay when they leave but some prefer to pay as they order. Some customers do just come for a drink, others eat and drink, some drink coffee. The restaurant prepares food daily and aims to sell it.
64. The Council told Ms X the business could still run under the existing licence. The use was considered permitted development by the planning department and there was no evidence of a breach. The Council also said customers could consume their food while seated at the bar.

My investigation

65. The Council told me a number of its departments have worked on the case and licensing enforcement officers have visited the site many times. The Council has, on occasion, issued warning letters when it identified breaches. It also asked the restaurant owner to correct the issues.
66. The Council said its environmental health officers have also visited several times, and are engaged in a criminal prosecution about matters found at the site.
67. The Council said it can only work within the boundaries of the law on the activities at the property, but it has considered Ms X complaints and taken action where evidence supported this.
68. On the environmental prosecution, the Council told me it launched this when the restaurant breached a noise abatement notice it served on 17 March 2022. The noise had to abate by 28 April 2022. The noise comes from an extraction flue on the rear wall of the building above the kitchen. The Council said it has served three summonses arising from three different periods in August 2022. The matter was heard in the Magistrates Court 15 June 2023 and the restaurant owner pleaded guilty to the three offences. The Court is due decide sentencing on 12 October 2023.
69. On Ms X’s recent complaints about a change of use at the premises, the Council said the company has not scrapped its food menu. Instead, it is a different food offer to the one in place when it first opened. The Council said from a planning perspective no change of use application is required and the existing planning consent is sufficient. The Council also said the business does not need to change its licence because of the menu change.
70. The Council told me the restaurant owner employed an acoustic consultant who provided an independent report on the noise in April 2023. The Council said its Environmental Health service is assessing the consultant’s recommendations and is in discussions with the restaurant owner.
71. The Council said it determined the licence condition about soundproofing the void in the ceiling was unenforceable. The Council understands neither landlord will allow the void between the properties to be accessed for the work.
72. The works proposed by the acoustic consultant are intended to address this issue and mitigate the noise.
73. The Council said it will continue to engage with Ms X and all complaints are investigated, with action taken when there is evidence to support it.
74. The Council recognised its communication could have been better. However, it also said the volume of emails sent by Ms X and her partner, to different council departments, made communication more challenging.

Analysis

75. I found the Council did as much as it could to mitigate noise and smell from the extraction unit. This is now in the hands of the court. The Council followed the correct procedure and I have not seen evidence of fault. Unfortunately, these matters take time to prosecute, but I did not see evidence of unreasonable delays by the Council.
76. The Council could not enforce the condition on soundproofing the ceiling void. That was understandably a source of frustration for Ms X. She raised the possibility of fault by the Council when the restaurant’s licence was approved. However, that decision was made in 2021, by committee, and was not part of my investigation.
77. Ms X first raised complaints about noise in August 2021. At first, the Council acted as we would expect. It asked Ms X to complete noise logs and it visited the property. It then served an abatement notice on 3 December 2021.
78. The condition about soundproofing, which should have been in place straight away, was still being discussed with the owner in March 2022. By 22 March 2022, the Council was aware the owner had difficulty soundproofing one half of the ceiling, as they needed access to the property above. However, there was no suggestion at that stage the Council thought the condition was unenforceable.
79. It was not until August 2022 that I saw records of the Council considering the soundproofing condition to be unenforceable. That was a full year after the restaurant opened and Ms X first complained about noise. That was far too long. It should not have taken the Council’s licensing service so long to find out the soundproofing condition was unenforceable. It should have been apparent almost immediately, because the restaurant owner should have installed soundproofing straight away to comply with the conditions of their licence. Instead, the licensing service allowed the matter to run and run. That was fault.
80. Ms X made a formal complaint in September 2022, still unaware the Council considered the soundproofing condition to be unenforceable.
81. In its complaint response, the Council told Ms X about difficulties enforcing the condition on soundproofing. This was the first time the Council properly explained the position to Ms X. Ms X regularly asked about soundproofing, but the Council did not update her. That was fault. Given Ms X had an open noise complaint with the Council, it should have updated her on an important development like this straight away. That was fault. The Council recognised its communication with Ms X should have been better.
82. The Council’s environmental health service issued an abatement notice in December 2021. It then carried out a site visit after the notice period. At that stage, the Council had acted as we would expect, and in line with procedures. However, despite an improvement in terms of loud music, general noise remained.
83. Unfortunately, I have not seen records from the Council’s environmental health service about whether they considered a statutory nuisance still existed at this stage. Or any consideration about what further action it should take. It decided to ask the Council’s licensing service to deal with the noise nuisance under the condition about soundproofing.
84. I can appreciate why the Council thought soundproofing may fix the issue, but the environmental health service was in a position where it could have proceeded with formal action if it thought the restaurant had not abated the noise.
85. Unfortunately, I have not seen any evidence about a consideration for that course of action. But it begs the question as to why the environmental health service took its investigation that far, only to pass the matter over to the Council’s licensing service.
86. Of course, if the licensing service had established by this point that the soundproofing condition was unenforceable, as it should have, then the noise issue would not have passed to licensing and the environmental health service could have considered further enforcement action.
87. Problems with noise continued, and the Council agreed an action plan with the restaurant owner in November 2022. However, it was not until April 2023 that an acoustic consultant made recommendations to mitigate the noise as an alternative to the soundproofing condition. Again, that was too long.
88. In general, I found the Council at fault for failing to get to grips with the issue of noise from within the restaurant. It failed to follow things up with the restaurant owner promptly and allowed things to drift. It may have sent warning letters and conducted visits, but the issue has now been ongoing for two years without a satisfactory resolution. That is a significant amount of time Ms X has experienced noise which the Council agrees amounts to a statutory nuisance. The acoustic consultant’s report has been available since April 2023 and still the Council has not agreed a plan of action with the restaurant owner.
89. I am satisfied the Council properly dealt with peripheral licensing issues satisfactorily and I did not see evidence of fault. This includes Ms X’s complaints about smoking, obstruction, operating hours, sale of alcohol, and whether the restaurant is operating as a bar.

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Agreed action

90. Within four weeks of my final decision, the Council will:
• Apologise to Ms X for its poor communication, for delays, and for its lack of proper oversight of the noise nuisance problem.
• Pay Ms X £400. This comprises £100 to recognise the avoidable distress and frustration its delays and poor communication caused. And £300 to recognise the impact on her amenity which was prolonged by the Council’s failings.
• Commit to a timescale to draw up an action plan of noise mitigation measures for the restaurant. It should also keep Ms X updated on its progress.
91. The Council should provide us with evidence it has complied with the above actions.

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Final decision

92. I have completed my investigation. The Council was at fault for poor communication, delays, and for allowing noise nuisance and licensing issues to drift.

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Investigator's decision on behalf of the Ombudsman