Summary: Mrs X complained the Council delayed in taking action when she complained of noise nuisance from a nearby bar. There was no fault in the Council’s actions.

The complaint

1. Mrs X complained the Council delayed in taking action when she complained of noise nuisance from a nearby bar.
2. Mrs X says that as a result of the Council’s delay she has been caused unnecessary disturbance and distress.

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The Ombudsman’s role and powers

3. 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

4. I spoke to Mrs X and considered the information she provided.
5. I made enquiries of the Council and considered its response. This included copies of the
6. I have written to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The Environmental Protection Act 1990 and noise nuisance

7. The Environmental Protection Act 1990 states councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance”. The noise complained about might be loud music, barking dogs or noise from industrial, trade or business premises.
8. For a noise to count as a statutory nuisance, it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure health or be likely to injure health.
9. The council is required to investigate complaints of noise nuisance. The process of deciding what level of noise constitutes a nuisance can be quite subjective. Councils do not have to witness noise nuisance in person. They can consider a range of evidence such as noise recordings, noise diaries and witness statements. Officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has actually occurred.
10. If an officer decides the noise is causing a statutory nuisance the council must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
11. The Act states it is a defence to enforcement action “to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance”.
12. ‘Best practicable means’ involves having regard to local conditions and circumstances, the current state of technological knowledge and financial implications.
13. It is also open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.

Planning enforcement

14. Planning enforcement action is discretionary and planning authorities should act proportionately in responding to suspected breaches of planning control. Paragraph 20 of the National Planning Policy Framework 2012 (‘NPPF’)
15. The guidance says councils should, where possible, try to resolve matters using informal methods before considering legal powers. If an informal approach is not successful, councils must decide whether formal action is in the wider public interest and a good use of public resources. The Town and Country Planning Act 1990 sets out its powers to take formal action.
16. Sometimes councils can seek to regularise a breach of planning permission by inviting the developer to submit a retrospective planning application. If this fails, the council still has the power to serve a formal enforcement notice if necessary.

What happened

17. At the end of 2017, Mrs X complained about noise from the bar situated on the ground floor of her building.
18. The Council sent her log sheets to record the noise incidents which she returned on 3 January 2018. These chiefly recorded incidents of a loud pulsing noise from the cooling system together with a few recordings of music, chairs scraping and the extractor fan. Mrs X also complained the early morning cleaner was too loud.
19. Officer B from the Environmental Health Department (EHD), offered to install noise recording equipment in Mrs X’s flat. There was a slight delay because the bar owner had agreed with Mrs X to address the noise issues but when that did not occur, Mrs X and Officer B agreed a date at the beginning of February to install the recording equipment.
20. Officer B collected the equipment on 7 February. When Officer B was able to hear the recordings, she found no evidence of noise from the early morning cleaner. However, the recordings contained noise from the music and patrons of the bar.
21. Officer B emailed the bar owner to set up a meeting which took place on 9 March. The bar owner stated he had put in a number of measures to try to address Mrs X’s complaints but he would look further at the noise issues.
22. Officer B emailed Mrs X and said that the Council would have to witness and assess whether the noise was causing a statutory nuisance before it could take any formal enforcement action. Officer B arranged to visit Mrs X’s flat on 28 March when they witnessed noise from the bar’s extractor fan and cooling system.
23. Officer B contacted the bar owner the next day and he agreed a professional would look at the extractor fan and he would send Officer B the cooling system specifications.
24. On 5 April Officer B asked Mrs X for dates for a second site visit to witness the music noise in person.
25. Mrs X responded and suggested a Saturday at the end of the month. Officer B said there were no EHD officers available that night. Mrs X and Officer B agreed to a site visit in May.
26. On 10 May, Officer B asked the bar owner what actions he had taken. He said he could not undertake any works to the building until he had permission from the building owner. He said he would turn the cooling system off 30 minutes earlier than previously agreed, at 10:30pm.
27. Officer B attended a site meeting with the bar owner and a representative from the extractor fan manufacturer on 23 May. The representative suggested work could be carried out on the extractor to reduce the noise. The Council says it discussed the issue of planning permission with the bar owner at the meeting.
28. A site visit did not take place in May. Therefore, Officer B said they could carry out a visit to Mrs X’s flat to witness the music noise on 2 June. Mrs X was not available and she suggested 22 June.
29. Also in May, the bar owner submitted an extension to extend the licensing hours for the bar. This was published on the Council’s website. The EHD was consulted but did not object because at this stage it had not identified any statutory nuisance.
30. On 22 June, Officer B and a second officer from the EHD walked past the bar but witnessed no noise. Officer B spoke to Mrs X and said they would wait to see if the noise started. Mrs X said she thought that if there was going to be any music that night, it would have already started. The two officers left.
31. Mrs X continued to experience issues with noise from the bar and made a number of complaints to the Council. Officer B agreed to visit her flat on 7 July with a second officer.
32. Around this time, the bar owner submitted a retrospective planning application for the retention of the cooling system which was already in place at the bar. This is because he should have applied for planning permission prior to having the system installed but had not done so.
33. The EHD officers arrived at the flat on 7 July, but Mrs X was not in. She arrived shortly after the agreed time, but by then the officers had left.
34. Officer B made another visit on 13 July and witnessed noise from the extractor. However, the officer could not distinguish the noise from the cooler over the extractor.
35. Officer B considered the noise from the extractor to be a statutory nuisance. Therefore, on 6 August, the Council served the bar owner with an abatement notice for the noise from the extractor fan. That required compliance by 30 November.
36. Officer B discussed further dates with Mrs X to visit her flat to witness the music and cooling system noise. At a visit on 20 August, Officer B again could not distinguish the noise of the cooling system from the noise of the extractor.
37. On 12 and 14 September, Officer B carried out two visits to Mrs X’s flat and witnessed noise likely to cause a statutory nuisance from the cooling system and the music.
38. Officer B considered the noise from the cooling system and music to be a statutory nuisance. Therefore, on 18 September, the Council served the bar owner with two abatement notices. The notice for the cooling system required compliance by 19 January 2019. The notice for the music required immediate compliance.
39. The bar owner carried out work to the extractor. Officer B carried out a site visit at the end of October and stated that the bar owner would meet the requirements of the abatement notice in connection with the extractor if he did not run it during the night.
40. Mrs X continued to report noise nuisance from the music, cooling system and also from patrons scraping chairs across the floor of the bar. She also said the bar owner was sometimes running the extractor during the night.
41. Officer B suggested Mrs X download the noise app the Council uses to record the noise.
42. From the end of October to the beginning of December 2018, Mrs X called the EHD out of hours service five times. Officers were not available to attend on any of these occasions.
43. Mrs X also submitted around 14 recordings she had made using the noise app. Officer B’s notes record music was audible on the majority of them.
44. The bar owner submitted a second retrospective planning application for the work he had done the previous year to the extractors. The EHD submitted a report with the application stating they were happy with the noise levels from the extractor now the bar owner had carried out the work.
45. Officer B met the bar owner at the end of November. He said he was looking at quotes to insulate the bar. Officer B stated the owner said he would make efforts to ensure the music was not an issue to Mrs X.
46. Throughout December 2018 and January 2019, Mrs X continued to record noise from the bar. The recordings all suggested there was loud music as well as noise from patrons scraping chairs across the floor. Mrs X also called the out of hours service but no officers were available to visit.
47. Officer B and a second officer visited Mrs X’s flat on a Saturday evening at the end of January and then again at the beginning of February. They did not witness noise that was at an unacceptable level.
48. Mrs X sent in further recordings from the noise app throughout February. Although Officer B could hear some sounds, they did not consider them unacceptable.
49. Officer B met with the bar owner on 20 March. The owner said he would restrict the hours the cooling system ran to between 8am and 9:30pm. He had also put rubber stoppers on the chairs. He said he would not have a DJ on Friday nights any longer and on Saturdays, the DJ would finish by midnight.
50. Officer B told Mrs X of what they had agreed with the bar owner. Mrs X said she was unhappy with the arrangements about the cooling system. Officer B told her that if the bar owner ran the cooling system between the agreed times, it would not constitute a statutory nuisance.
51. On 4 April, Officer B met with the bar owner again and agreed an acceptable level for the music volume, as heard from Mrs X’s flat. The owner said he was trying other methods with the noise of scraping from the chairs.
52. The Council refused permission for both retrospective planning applications made by the bar keeper. Noise was not an issue, but the Council considered the extractor’s appearance was not in keeping with the street scene. It refused the retention of the cooling system because of the negative impact on neighbour amenity due to the statutory noise identified by the EHD.
53. To date, the Council has taken no planning enforcement action in relation to the extractors or cooling system. It is open to the Council to decide it is not in the public interest to do so.

My findings

54. The Council took appropriate action to investigate Mrs X’s complaints about noise nuisance including issuing diary sheets. Officers decided they needed to witness the noise before determining whether it was a statutory nuisance and between March and Sept 2018 they carried out seven visits. Although the Council did not arrange these visits as quickly as Mrs X would have liked, the Council worked with the dates when Mrs X and its officers were available.
55. In addition to the above actions, the Council corresponded with the bar owner and also met on site with him about the measures he was taking to try to address Mrs X’s complaints of noise. When the Council did identify a statutory nuisance it issued abatement notices to the bar owner in a timely manner.
56. After issuing the notices, the Council was in regular dialogue with the owner over ways of reducing the noise from the bar to prevent a potential prosecution. It also monitored the steps he was taking to address the issue. These were actions the Council was entitled to make and it had no duty to proceed straight to prosecution after issuing the notices.
57. Mrs X complained she had to tell the EHD to contact the Council’s planning department to check whether there were any planning breaches relating to the bar. She believed the EHD should have done that without prompting from her.
58. The chronology provided by the Council indicated it discussed the matter with the bar owner before Mrs X raised the matter.
59. I did not investigate who raised the issue first. That was because I would not expect the EHD to contact the planning department on immediate receipt of a potential noise nuisance from a business premises. When I spoke to the Council, it said in these cases it would first determine the level of nuisance before considering its next steps. There is no fault in taking this stance. And whoever contacted the planning department, it was aware of the issues around May 2018, about three months after Mrs X returned her diary sheets.
60. And even if I did investigate and find fault due to delay, that did not cause Mrs X an injustice. That was because throughout the time period I am investigating the EHD:
• acted in an appropriate and timely manner in its investigation of Mrs X’s complaints;
• issued three abatement notices in August and September 2018; and
• worked with the bar owner to address the on-going noise issues both before and after issuing the notices.
61. Furthermore, if planning had become involved at an earlier date, without the abatement notice issued by the EHD in September 2018, it is not possible to say whether it would have refused planning permission for the cooling system.
62. Even if it did refuse planning permission for both the extractor and the cooling system, there is no obligation for councils to take enforcement action against a breach of planning control. Enforcement action is discretionary, and local planning authorities will act proportionately in responding to suspected breaches.
63. In relation to the application by the bar for an extended licence, the EHD was not at fault when it did not object to the application. This is because in May 2018, it had not identified any statutory nuisance.
64. The Council did not witness a statutory nuisance in relation to the scraping of chairs. There was no fault in the way it has considered that issue.

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Final decision

65. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman