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Bromsgrove District Council (18 005 330)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 29 Mar 2019

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to consider properly noise complaints from him and his partner and the Council withdrew abatement notices inappropriately. We found the Council reached these decisions properly. Mr X also complained about the way the Council handled the investigation. We found there was fault in the way the Council agreed noise testing with those responsible for the noise. The Council agreed to pay £100 to Mr X to remedy his injustice.

The complaint

  1. Mr X complains the Council:
    • does not have appropriate policies in place for investigating statutory nuisance;
    • failed to initially investigate a complaint about noise as a potential statutory nuisance;
    • failed to serve a noise abatement notice in a reasonable time, after a statutory noise nuisance was established;
    • unreasonably withdrew the abatement notice without consultation with him and without any effective monitoring of the property concerned;
    • has not been open about the involvement of a councillor before the abatement notice was withdrawn; and
    • failed to properly communicate and update him about the investigation.
  2. Mr X also complains officers failed to act responsibly and with due consideration when they withdrew the abatement notice under pressure to do so by a councillor.
  3. Mr X says the council’s actions and approach caused him his partner and their family unnecessary stress and compounded intimidation by those causing the noise.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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

  1. I spoke to Mr X and considered his complaint. I asked the Council for information and considered its response. I sent my draft decision to Mr X and to the Council and considered the comments received from both parties before reaching my final decision.

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What I found

  1. Mr X’s complaint concerns noise from a church hall opposite his home.
  2. The church hall has a license allowing live and recorded music to be played indoors until 23:20pm between Monday and Saturday and until 22:50pm on Sundays. There are various licence conditions. These include the need for a licensee, or nominated person to be present and for hirers of the hall to be made aware of licence conditions. The conditions also required windows to be closed during events and the need for a noise limiting device to be integrated to all electrical sockets within the main hall. The conditions do not specify the required settings for the noise limiter.
  3. There were several parties at the venue in or around March/April 2016 where Mr X says music continued until the early hours of the morning. Mr X’s partner made a report to the Council about unreasonable late-night noise as a result.
  4. An environmental health officer (EHO) told Mr X’s partner he would write to the church hall committee to raise the issue. The Council provided a copy of a letter it sent. It stated reports of noise had been received and this could also represent a breach of licence conditions. It asked those responsible for the church hall to take steps to ensure levels of noise would not cause a disturbance.
  5. The EHO agreed to speak to the licensing department about the potential breach of conditions. He stated he could provide noise monitoring equipment. Correspondence between the officer and Mr X’s partner indicated that she considered it a licensing issue. In any event, because no request was made for noise monitoring, the Council closed its file on the noise complaint.
  6. In April 2017 Mr X made a report of noise from an event that lasted until after midnight.
  7. An environmental health officer (referred to in this statement as Officer A), contacted Mr X promptly after the report. She told Mr X she had discussed the matter with colleagues who deal with licensing. As there were clear breaches of the licence, they would be dealing with the matter. However, if there was further noise nuisance she would install noise monitoring equipment to obtain evidence, and if appropriate, an abatement notice would be served.
  8. On 2 May the Council sent a warning letter to the licensee. It stated a noise nuisance had been reported outside the hours permitted by the licence, while windows and doors were open. It asked the licensee to ensure the premises was operating in accordance with the licence. It warned that a breach of licence was an offence and it was also possible action may be taken under noise nuisance legislation.
  9. On 5 May, a senior EHO visited Mr X and exchanged emails with him a week or so later. The officer looked at a video Mr X had made of the noise on 15 April and discussed the Council’s approach with him. The Council summarised the action being taken under licensing. Mr X acknowledged this but asked the Council to tell those responsible for the church hall the noise was considered a statutory nuisance. He also made some observations about the noise limiter at the hall seeming ineffective from a recent event he attended. These comments were acknowledged and passed to Officer A. The EHO stated they would stand by to carry out noise monitoring if it was needed.
  10. On 26 May, Officer A contacted Mr X for an update and he stated there had been no new noise issues since 15 April.
  11. On 9 June, Officer A installed noise monitoring equipment at Mr X’s partner’s property to monitor two planned events at the church hall. The last of which was mid‑June. It was removed after these events took place.
  12. Mr X says it was not until 9 June 2017 that the Council investigated the noise limiting device. He says Officer A told him the noise limiting device had been set (to cut out electrical sockets) when noise reached 103Db. When set at such a high level, it could not effectively control noise at the premises.
  13. On 5 July Officer A told Mr X the recordings provided evidence of a statutory noise nuisance.
  14. On 21 July, Officer A issued abatement notices to the two licence holders. The Council advised them to obtain advice from a noise consultant and to check the noise limiter was set correctly.
  15. A solicitor acting for the two licensees contacted Officer A on 28 July. He stated it was likely they would be lodging appeals. He also stated they had arranged for an independent noise consultant to conduct sound tests at the hall on 12 August. He asked for a specific assurance the Council would “take no enforcement action and conduct no investigations in respect of any activities undertaken on 12 August whether that results from noise complaints or otherwise”.
  16. On 1 August Officer A replied. She stated, “further to our conversation on 31st July, I can confirm that there will be no enforcement action taken by this authority on 12 August 2017 in relation to a noise survey being carried (sic) at the church hall…Can you advise me of the rough timings that the assessment will be carried out so that I can advise the complainants”.
  17. On 4 August Officer A told Mr X the noise survey work would be taking place. She stated she would provide more details of the timings nearer the date.
  18. On 7 August, the licensee’s solicitor provided details of the noise consultant doing the testing. He indicated he would not continue to be involved because the noise abatement notices had been withdrawn against the licensees.
  19. The Council told me after further investigations into who was responsible for the church hall, it issued fresh Abatement Notices to two church groups. These were issued on 11 August 2017.
  20. On 12 August, the church hall committee arranged for a noise consultant to test the noise levels at the hall. The noise consultant carrying out the tests stated music would be played and noise measurements would be taken at various locations. The consultant stated testing would be kept to a minimum and it would be kept to licensed hours.
  21. Mr X says the noise from the testing on 12 August went on until after midnight. He was unhappy the Council had allowed the testing to take place as it amounted to a breach of the abatement notice. Noise after midnight would also represent a breach of the licence conditions.
  22. Mr X says no-one at the Council had been present at the hall to monitor the testing. The Council told me that a senior EHO had attended Mr X’s road to install noise monitoring equipment the same evening and he did not witness a statutory nuisance while he was there.
  23. Mr X complained to the Council and met with officers to discuss his concerns on 15 August. A manager wrote to him on 18 August with an update. He stated that no-one had ‘cancelled’ the abatement notice for the noise survey work, rather a reasonable period of testing had been agreed. However, he had emphasised that officers should communicate clearly and should be inquisitive about what was proposed. He apologised for the original delay in serving the abatement notice.
  24. At the end of August, the Council received appeals against the abatement notices issued to the church groups.
  25. In October 2017 Officer A and her manager met with a representative of the committee responsible for the hall. Legal representatives from both sides attended the meeting.
  26. The Council provided me with details of what was discussed at the meeting and steps the committee agreed to take. Although I have seen the details of the agreed actions, I cannot share it with third parties including Mr X or his partner. However, the actions agreed were tangible actions to manage noise and address licence conditions at the hall. As a result of the meeting the Council agreed to withdraw the abatement notices, subject to the agreed actions being taken by the church hall committee.
  27. The church hall agreed to contact the Council before the next event was held to allow an officer to attend to monitor noise levels and assess nuisance.
  28. On 25 October 2017, the Council emailed Mr X to tell him the abatement notices had been withdrawn. He was unhappy that this had not been discussed and he had not been aware of what had happened since the testing occurred in August.
  29. A Temporary Event Notice (TEN) was submitted by someone intending to use the church hall for a party on 22 December 2017. Mr X explained there was a large marquee on the car park of the hall and the marquee had little insulation, so the party was loud.
  30. The Council told us that Officer A visited the village to monitor the noise between 22:20pm and 23:00pm. She witnessed no licensable activity taking place in the marquee. She did not find the noise was a statutory nuisance. The Council also noted the noise limiter was operational.
  31. Mr X and his partner disagreed. They felt the Council failed to monitor the event properly and they felt the noise was at statutory nuisance level. They stated by 10:30pm when Officer A arrived, the music had stopped. They noted the marquee had little or no sound insulation.
  32. Noise monitoring equipment was installed at Mr X’s property ahead of the event. Officer A listened to the recordings. She heard general noise from people speaking, an underlying music noise and she could identify the song playing but she did not consider the noise was loud enough to be regarded a statutory nuisance. She felt the music was not at an unreasonable level.

Intimidation and problems in the community

  1. Social media comments and correspondence Mr X saw from the church hall committee in 2016 stated they would be introducing some new rules to try to avoid further complaints or licence breaches. However, Mr X stated following the complaint in 2016, an email to a large list of villagers which was inflammatory, downplayed what had happened and provided information that would identify his partner as the complainant. The email suggested the issue had been raised by a single complainant and it had been unreasonable. Mr X noted there seemed no acknowledgement by those involved with the church hall that the noise limiter had not been working correctly or that there had been several breaches of the licence conditions.
  2. Mr X said that from 2016 his partner was intimidated by various people in the local community because she had raised the noise complaint. He says they regularly shouted abuse at her and her family and ostracised and bullied her. On some occasions Mr X says threats were made.
  3. Following the Council’s decision to issue an abatement notice in 2017 there were targeted comments about his partner on social media and intimidating behaviour continued. Eventually his partner sold their property and moved out of the area.
  4. Mr X says they reported incidents to the police and as a result the police had issued a caution to one local person.

Council Policy

  1. The Council told Mr X it has no specific policy of its own concerning the investigation of noise nuisance complaints.
  2. The Council’s environmental health and licensing services (along with those of five other councils) are dealt with through Worcester Regulatory Services (WRS). WRS also provides some other council functions.
  3. The Council stated that officers working for WRS have the delegation to make professional judgements about whether a statutory nuisance exists. Any legal processes and procedures are overseen by managers with the involvement of a legal team.
  4. WRS has an enforcement policy. It sets out the principles the organisation will follow, what enforcement options it has and what factors will be considered when deciding what action is appropriate.

Councillor Involvement

  1. Mr X noted a contact from a local councillor on the Council’s records. An EHO was asked to contact the councillor (referred to as Cllr B). The contact record stated the councillor “is trying to get everyone to work together to resolve the situation but needs to speak to you first”.
  2. The Council stated the EHO spoke to Cllr B. The conversation was about arranging a meeting with representatives of the church hall. However, during the call the EHO updated Cllr B about the church hall committee’s position. Because they had decided to seek legal advice, the church hall committee had already told the Council that they did not wish to meet. As a result, no meeting took place involving Cllr B. When officers did later meet representatives of the church hall committee, Cllr B was not involved and the Council confirmed Cllr B made no contact with Officer A or applied any pressure to remove the abatement notice.

Analysis

  1. I am satisfied the Council was not at fault in the way it considered the reports in 2016. Officers sent an informal warning letter to the church hall committee to ask them to note the complaints and take appropriate action. The Council offered to provide noise monitoring equipment. As both Mr X and his partner are themselves EHOs, they would have been clear that noise monitoring was an option if they wanted to pursue a complaint about statutory nuisance. Based on the correspondence I have seen, Mr X’s partner’s complaint appeared to be focussed on the licensing issue at that time.
  2. In 2017 the Council contacted Mr X promptly. It initially sent a warning letter about breaches of the licence. Noise monitoring equipment was then installed before the next events happened in June. When these recordings were analysed, they provided evidence of a statutory nuisance. However, it took too long (around 4 weeks) to analyse the recordings and to issue the abatement notice. This was fault. Although it took longer than it should have, there were no more events in the meantime that caused a nuisance, so the fault caused no significant injustice to Mr X and his partner. I also note a manager accepted and apologised for the delay.
  3. However, I found there was injustice to Mr X and his partner from the way the Council handled the request for noise survey work from the church hall in August. I say this because:
    • The Council agreed not to take any enforcement action for any noise created as part of the noise survey without a proper understanding of what time the testing would take place and how long it would go on.
    • The noise consultant told the Council he would keep the noise to licensed hours and to only what was necessary, yet officers told Mr X the noise testing would start at 8pm and may go on to midnight. It is unclear why such a long period of testing was necessary in any event. But, given the statutory nuisance already witnessed from the church hall, there seems no justification at all for officers accepting music being played until midnight, 40 minutes later than licence conditions allowed. Mr X told us the noise ceased at 12:10am. I have no reason to doubt the noise continued so late, particularly given what officers had said to Mr X.
    • I note that officers attended for some of the time the testing was being carried out and they did not consider there was a statutory nuisance. While there was no requirement for officers to oversee all the actions of those completing the testing, it is clear officers failed to properly manage the noise survey. They did not agree clear limits or reasonable hours. As a result, Mr X and his partner were disturbed by the noise and were understandably unhappy at the Council’s actions.
  4. I recognise Mr X was unhappy with the Council’s decision to withdraw the abatement notices after officers met members of the church hall committee in October 2017. While I understand he disagrees with this decision, differences of opinion about the correct action to take do not amount to fault. The Council explained it was satisfied the actions agreed would prevent a re‑occurrence of the nuisance. As a result, it considered it was not unreasonable to withdraw the notice to avoid the cost associated with an appeal. This was a decision the Council was entitled to take when considering the likelihood of the actions preventing further nuisances. I found there was no evidence of the involvement of Cllr B in the Council’s decision to withdraw the abatement notices.
  5. I am satisfied the Council monitored the event in December sufficiently. Officers were present for some of the time and the Council installed noise monitoring equipment. I recognise Mr X and his partner disagreed with officers about the extent of the noise. However, the officers’ decisions were based on the situation when they visited to witness the noise and the recordings from Mr X’s property. Although I appreciate Mr and Mrs X may have judged the noise differently, I have not found fault in the way the officers reached their decisions about noise in December 2017. The Council noted the marquee was not used for licensable activity.
  6. I note Mr X felt those involved with the church hall trivialised the complaint and he stated they intimidated and bullied him and his partner as a result. Mr X felt the Council’s approach did not help with this. He felt in particular the Council failed to properly communicate its decision to withdraw notices in October 2017 which had exacerbated the unreasonable view among some local people that the noise complaint had been unjustified.
  7. For the most part, I found the Council maintained appropriate contact with Mr X about the investigation and actions being taken. However, it appears there were no updates between the noise survey work in August and the meeting with the church hall committee in October. It may have been appropriate to keep Mr X better informed of the actions being taken in this period and the intention to meet with the church hall committee. I can understand, in the context of the actions of other people in the village towards Mr X and his partner why they were unhappy with the decision, and why they found the actions of some local people were so unreasonable. However, as I have stated above, the decision about whether to withdraw the abatement notices was one which the Council took on the basis that it believed the church hall committee would act to prevent further statutory nuisance.
  8. I have no reason to doubt what Mr X and his partner have said about the abuse and intimidation they have faced from other people in the village, and the difficulties this caused them. I have sympathy for their position. However, this behaviour was not the action of the Council or endorsed by the Council. The Council noted the police were the appropriate body to consider these issues. I understand Mr X’s view that withdrawing the abatement notices may have led to some individuals believing their complaints were unjustified, but this was clearly not the case. There is evidence licence conditions were breached and statutory nuisance was witnessed.
  9. I found no issues in relation to the Council’s policies.

Agreed action

  1. The Council has agreed to pay Mr X £100 within one month of my final decision to recognise the failure to manage the August 2017 noise survey and the avoidable disturbance this caused.

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Final decision

  1. I have completed my investigation as there was fault by the Council. Although Mr X does not agree with my decision, I am satisfied the action the Council will take is sufficient to remedy his injustice.

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Investigator's decision on behalf of the Ombudsman

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