Summary: Mr X complained the Council failed to follow procedure when considering an application for a premises licence. The Council granted the licence. Mr X says the new pub creates a noise nuisance. The Ombudsman has found the Council at fault for failing to consult with the responsible authority for planning. It is unlikely the planning authority would have objected to the application; the result would have been the same. There is therefore no injustice to Mr X.

The complaint

1. Mr X complains the Council:
• failed to advertise an application for a new pub;
• failed to tell the responsible authority for planning;
• did not declare an active noise complaint; and
• accepted a false address within the application.
2. The Council did not receive any objections and granted the licence. The pub creates a noise nuisance which impacts on Mr X’s enjoyment of his property and decreased its value. He would like the Council to apply for the decision to be judicially reviewed or financially compensate him for the loss of value to his home and for the stress caused.

Back to top

The Ombudsman’s role and powers

3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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)

Back to top

What I have and have not investigated

5. I have investigated how the Council handled an application for a premises licence and how this affected Mr X. I have not considered Mr X’s complaints about noise which he has already raised with the Ombudsman. Information is provided for background, and to assist understanding of this case.

Back to top

How I considered this complaint

6. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Licensing Act 2003, The Licensing Act 2003 Regulations 2005 the Statutory guidance under section 182 of the Licensing Act 2003
7. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

Back to top

What I found

Relevant legislation

8. The Licensing Act 2003 sets out in law which businesses may need a licence to sell alcohol and what type of licence a business may need. All businesses must get a licence before they can sell alcohol to the public.
9. The council is the body responsible for issuing alcohol licenses and is called the licensing authority. For ease of reference, I shall refer to it as the council.
10. A premises licence application is made under section 17 of the Licensing Act 2003. Under regulation 25, the applicant must advertise the application. The applicant must display a notice ‘prominently at or on the premises to which the application relates where it can be conveniently read from the exterior of the premises…’ and publish an advertisement in a local newspaper. The council must place a notice on its website and give notice of the application to responsible authorities. Responsible authorities are public bodies who must be notified about applications and reviews and include the police, local fire and rescue, environmental health authority, planning authority and others.
11. When the council receives an application for a new premises licence, it must decide if the applicant has followed the Act and Regulations.
12. Where an applicant makes an application and no responsible authority or other person makes representations within 28 days, the council must grant the application, subject only to conditions in the Act.
13. If the council receives representations, it must decide whether those representations are relevant to the licensing objectives and not frivolous or vexatious. If the council decides that any representations are relevant, then it must hold a hearing to consider them. At a hearing, the council has several options which include granting and rejecting the application. It can also attach conditions to the licence.
14. Where the application is granted, if an objecting complainant disagrees with the council’s decision, they have the right to appeal to the Magistrates court.

The Council’s policies and procedures

15. The Council’s website explains how an applicant can apply for a premises licence and provides a downloadable application form. The website says the applicant must display the notice of application at the premises for a period of 28 consecutive days and they must also put a notice in the local newspaper.
16. Following the consultation period, if the application receives no representations, it will be deemed granted and the licence will be issued.
17. If the council receives representations within the consultation period, the application must go to a hearing.

What happened

18. I have summarised below the key events; this is not intended to be a detailed account.

Background on the previous Ombudsman investigation

19. In July 2021, Mr X complained about noise from a pub near to his house. Mr X said he chased the Council for a response several times. In the middle of August, the Council said it would investigate. Mr X sent videos and diary sheets; some evidence was on a USB memory stick. In September, officers offered to install noise monitoring equipment, Mr X said things had improved (the noise had been loud on warm sunny days over the summer period) and asked for further information before agreeing, the Council did not respond.
20. In October and December 2021, Mr X contacted the Council and asked it to return his USB stick. Mr X also told me he did not get a response to several emails and calls. The Council returned the USB stick in December. The Council closed its file in March 2022. There is no written record of the Council telling Mr X it had closed its file.
21. Mr X told me he contacted the Council in January 2023 to ask about the progress of his noise complaint and again in June as the Council had not followed up with a full response as promised. Mr X said he submitted a new noise complaint in June.
22. The Ombudsman previously investigated this complaint and found the Council at fault for failing to properly respond and investigate Mr X’s noise complaint. This meant the Council did not establish if the noise was statutory nuisance and whether it would have taken formal action, leaving Mr X with uncertainty about whether the result would have been different but for the fault. The Council apologised for failing to progress the case and failing to update Mr X.

The Application for a premises licence

23. In April 2022, the Council received an application for a new premises licence. Mr X’s property borders the new premises on two sides.
24. The Council emailed the applicant confirming receipt of the application and telling them to display the blue notice outside the premises where members of the public could easily read it. It also required the applicant to advertise the application in a local newspaper. The Council asked the applicant to send proof it had done so and said it would terminate the application if the applicant failed to meet the advertisement requirements. The Council said it would tell responsible authorities of the application.
25. The same day, the applicant emailed a photograph of the notice to the Council. Officers considered the evidence and were satisfied the applicant had advertised the application correctly.
26. At the end of April, the local newspaper published the notice for application for the grant of the premises licence.
27. An environmental health officer emailed the licensing officer with concerns about the application and said it could not support it. They expressed concerns about cooking smells and noise at the premises.
28. In early May, the environmental health officer visited the site. The applicant said the premises would reheat food so there would be little odour produced. The applicant addressed the officers’ concerns about noise by agreeing to a condition to stop activity in the licensed area by 10pm. This satisfied the environmental health officer who said they would not make further representations.
29. The closing date for representations was late May. The Council did not receive any further representations. The Council granted the licence.
30. In late June, Mr X complained about noise from the premises. He completed diary sheets in July and the Council installed noise equipment. The environmental health officer listened to the recordings and said ‘music and lyrics were audible from the complainants property’, but it was not statutory nuisance.

Mr X became aware of the new premises licence

31. In January 2023, Mr X found out about the new premises licence after enquiring about his noise complaint. He said he did not know about the application and would have objected had he known about it. Mr X expressed concerns about noise as the new premises is in the same area he has been complaining about since 2021.
32. In late August, Mr X submitted an application to review the premises licence.
33. In response to the review application, the Council received responses from four responsible authorities and around ten responses from the public. The public protection unit made comments on the application and explained it received a complaint about noise from Mr X in the middle of June 2022 (as detailed above) and again on 31 December 2022. The Council considered the latter was a one off and not a statutory nuisance. The Council advised Mr X to ask for diary sheets if it became regular, he did not. The three other responsible authorities did not make formal representations.
34. The Council held a hearing for the application to review the premises licence in early December 2023. The committee decided to take no further action. It said the issues raised did not justify revocation or suspension of the licence.

The Complaint

35. Mr X complained to the Council in October 2023. The Council issued a stage one response in November and a stage two response in December.
36. In its stage two response, the Council said the application had been correctly advertised and it had followed the statutory guidance. It said it had improved its processes as officers must now physically inspect notices to ensure applicants have displayed them correctly.
37. The Council admitted it did not consult with one responsible authority (the planning authority) in the initial application which it said was a mistake. It said it has provided extra training to relevant staff to ensure this does not happen again.
38. The Council explained it is sometimes not possible to get a postal address for a piece of land. It was satisfied the premises could be identified from the documents submitted by the applicant. The application form contained a red edged plan which identified the location of the premises.
39. In response to my enquiries, the Council said it cannot evidence that it checked the applicant’s address and contact details when it received the application. The Council said it has updated its procedures and now checks this as part of the application process.
40. In response to enquiries, the Council provided photo evidence of the blue notice which the applicant advertised at the premises and sent a copy of the newspaper advert. The Council also confirmed it advertised the application on its website during the consultation period.

Analysis – is there fault causing injustice?

Address on the application form

41. When considering the application, the Council was satisfied the premises could be identified. The application form contained a red edged plan which identified the premises. It also included a general description of the premises which explained the area was to the rear of a named establishment which can be easily located on a map. I am satisfied the location of the new area to be licensed was identifiable.
42. Mr X said the said the premises did not have a registered postal address and he could not write to them. I am satisfied with the Council’s complaint response which explains it is not always possible to get an address for a piece of land. In response to my enquiries, the Council said it did not check the applicant’s contact details were accurate as part of the application process. It could have done more to check this. The Council has updated its procedures and included this in the application process. While the system could have been better, I do not consider this serious enough to be fault as the premises could be identified from the detail on the application form.

Failed to advertise application

43. The legislation puts the responsibility on the applicant to advertise the application and not the licensing authority. The licensing authority advised the applicant how to advertise the blue notice and asked for proof of this. In response to my enquires, the Council said it was satisfied the applicant correctly advertised the application, and said the applicant provided a photo of the blue notice displayed as evidence. Mr X is not satisfied the blue notice was advertised correctly as he says it could not be seen from the public highway.
44. It is not for me to decide if the blue notice was displayed appropriately but rather to check the Council complied with the legislation. The responsibility for advertising the blue notice is on the applicant and the Council must satisfy itself the applicant has done so. The Councils’ record shows it received a photograph of the blue notice from the applicant and was satisfied this complied with the legislation. In response to my enquiries, the Council confirmed it was satisfied the application had been correctly advertised. The statutory guidance says ‘Licensing authorities may wish to conduct random and unannounced spot visits to premises to confirm that notices have been clearly displayed…’, but there is no requirement to do so. The Council complied with the legislation as it required the applicant to advertise the application and was satisfied they did. The Council did not inspect the blue notice and while it may have been prudent to do so and has since introduced this to its policy, it is not required by the legislation. The Council is not at fault.
45. In response to my enquiries, the Council provided a copy of the advert from the local newspaper as evidence the application was advertised and the guidance was complied with. The Council is not at fault.

Failure to tell responsible authorities

46. In its stage two response, the Council said it failed to consult with one responsible authority. This is fault which the Council accepts. The Council told me it is rare for a planning authority to respond to a premises licence application. In response to my further enquiries it explained over the last five years, it has received five responses to licensing applications and reviews from planning authorities. Four of these responses were no comment. I therefore consider it unlikely the planning authority would have responded negatively to the premises licensing application. This is confirmed by the same responsible authority not making representations to the application to review the Premises Licence. On the balance of probabilities, it is likely the planning authority would not have made representations against the original application, and the result would have been the same.

Failed to declare active noise complaint

47. Mr X said the environmental health officer failed to declare his noise complaint. At the time of the application, the Council had closed Mr X’s noise complaint. The previous Ombudsman investigation found the Council at fault for failing to properly respond and investigate Mr X’s noise complaint. This is fault. However, I do not consider it had an impact on this complaint. This is because the licensing authority consulted with environmental health as part of the application process. The environmental health officer raised concerns about noise which shows the Council properly considered this. The applicant addressed the concerns by agreeing to a condition on the licence. I consider this a satisfactory response.

Summary of fault causing injustice

48. The Council is at fault for failing to consult with the local planning authority, which is one of the responsible authorities. It is rare for a planning authority to raise objections to a licensing application and the same responsible authority did not put in representations to Mr X’s application for a review of the licence. On the balance of probabilities, I consider it unlikely it would have submitted representations about the initial application, the result would have been the same.

Action already taken by the Council

49. The Council amended its policy and procedure to include a physical inspection of application notices and to ensure applications are sent to all responsible authorities.

Back to top

Final decision

I have completed my investigation. The Council is at fault for failing to consult with the responsible authority for planning. However, it is likely the planning authority would not have responded to the application and the outcome would have been the same. The Council’s fault here has not meant there was a significant injustice to Mr X.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman