Summary: Mr X complains the Council had not acted following complaints of noise and broken licence conditions at a restaurant. There is no evidence of fault by the Council. It investigated Mr X’s concerns and took action when it had evidence.

The complaint

1. Mr X complains the Council did not tell residents about licence applications for a restaurant next to his home in 2016 and 2017, denying residents the opportunity to object. He says the Council has not acted on a breach of licence conditions or taken any action to deal with noise and other nuisance outside the restaurant.

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The Ombudsman’s role and powers

2. 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)
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 considered the complaint made by Mr X and discussed it with him. I asked the Council for information and consider what it provided.
5. I wrote to Mr X and the Council with a draft version of this decision and gave them an opportunity to comment.

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What I found

The Licensing Act 2003

6. When an applicant applies for a premises licence, the applicant and the Council must publish a notice of this so those who could be affected can comment to the Council. If the Council does not receive any comments it must grant the licence. The Council can impose conditions on the licence. (Paragraphs 17 and 18)
7. When an applicant asks for a transfer of a licence the Council tells the chief officer of the police of the application but does not advertise the application. (Paragraph 42)
8. Anyone can ask the Council to review a licence. The person who asked for the review can appeal the Council’s decision on the application in the Magistrates Court. (Paragraphs 51 & 52 and schedule 5)
9. The holder of a premises licence can notify the Council he wants to hold a temporary event. For example, an event held later at night or in a garden. To apply, the licence holder fills in a temporary event notice (TEN) and sends it to the Licensing Department, the Police and Environmental Health. The Police and Environmental Health have three days to object. (The Licensing Act 2003 (Permitted Temporary Activities) (Notices) Regulations 2005)

Noise nuisance

10. Noise from premises or from a vehicle or machinery in a street that is prejudicial to heath can be a statutory nuisance. (Environmental Protection Act 1990 section 79)
11. If an Environmental Health Officer witnesses a statutory nuisance then he or she must serve an abatement notice.
12. A council will usually investigate a statutory nuisance by asking a complainant to fill in diary sheets. If these show a potential statutory nuisance the Council will either set up a recording device in the complainant’s home or an Environmental Health officer will visit to try to witness the noise.
13. A council can only find noise from people in a street a statutory nuisance if the noise is linked to a building or private land.

What happened

14. In 2015 Mr X moved into a flat in a converted building in the City centre. Next door is an entertainment venue (the “Venue”). From 2008 the owners of the Venue had a licence to use it as a nightclub.
15. In 2016 new owners took over the Venue and they decided to use it as a restaurant. In June 2016 the new owners had a private opening party. Neighbours complained about the noise going on until three in the morning.
16. Council officers visited the Venue and told the new owners to apply for a licence. The new owners did this and asked to run a late-night bar/restaurant. The Council has provided evidence it advertised the application. The Council received no representations.
17. The Council granted the licence but imposed conditions. The Venue could only sell alcohol with food, must stop serving at midnight with half an hour then to clear the Venue. The Council also said the Venue must have a sound lobby at the door to reduce noise.
18. Mr X lives opposite a bar and made complaints about noise from it. In November 2016 Environmental Health put a noise monitoring device in Mr X’s home. Mr X said some music on the recording on one night came from the Venue. Environmental Health told Licensing.
19. The Venue had a TEN when the recorder was in Mr X’s home. A Licensing Officer investigated, visited the Venue and looked at its CCTV. The Licensing Officer saw no evidence the Venue had breached the TEN.
20. In December 2016 Mr X told the Council the Venue stayed open after midnight. The Licensing Department sent a formal warning to the Venue.
21. In late January 2017 Mr X complained about the noise from the Venue over Christmas and New Year. Environmental Health and Licensing met with the licence holder.
22. The Venue had a TEN for 11 February 2017. On 10 February Environmental Health told Mr X about the TEN and asked if it could put a noise monitor in Mr X’s home. Mr X refused. Environmental Health told Mr X it might have evidence to refuse or impose conditions on any further TENs from the Venue. Environmental Health said an officer would visit after 11:30 p.m. on 11 February to assess the noise.
23. An Environmental Health Officer and a Licensing Officer visited from 11:25 p.m. until 12:20 a.m. They saw a loud fight outside the Venue, including a customer kicking the door.
24. On 14 February 2017 Environmental Health telephoned and emailed Mr X. It said it would raise objections to any further TEN applications for the Venue. Licensing told Mr X and the licence holder it would modify and impose conditions on any future TEN application.
25. In March 2017 the licence holder asked the Licensing Department for permission to remove the sound lobby. The Licensing Department refused.
26. In April 2017 the licence holder applied for a TEN for the Venue. Environmental Health objected. The Council told the licence holder it would refer the application to the Licensing Committee for a decision. The licence holder withdrew the application.
27. In June 2017 Mr X met with the Head of Regulatory Services and Environmental Health and Licensing Officers. The Officers told Mr X the limits of their powers in managing disturbance from customers after leaving licenced premises. The Officers told Mr X about evidence for noise complaints. They told Mr X he could ask for a review of the licence.
28. In June 2017 the licence holder sold the Venue. The new owner applied for a transfer of the premises licence. Licensing Officers held a meeting with the new owner. They told her about the complaints about the Venue and it would reject or impose conditions on any application she made for a TEN.
29. The Council advised the Police about the proposed transfer. The Police did not object so the Council transferred the licence to the new owner.
30. In September 2017 Mr X complained about noise from the Venue. He complained of noise from people smoking outside the Venue and when they left. Mr X sent photographs of people outside the Venue.
31. An Environmental Health Officer and Licensing Officer visited the new licence holder. They went through the licence with her and suggested ways she could reduce the noise from people outside. They suggested signs on the door, allowing people to wait inside for transport and staggering leaving times. The new licence holder expressed concern the business would not survive without special events.
32. Environmental Health says it had no further noise complaints from Mr X.
33. In early September 2018 Mr X asked to meet with the Licensing Officer. The Council did not agree to the meeting. It says it had already told Mr X all it could. It had told him he could ask for a review of the licence and asked him to fill in diary sheets and have a noise monitor installed.
34. In September 2018 the Venue changed hands again. The new owner applied for a transfer of the licence. The police did not object.
35. During the weekend of 15 to 17 September the Council received complaints of noise. A Licensing Officer and Environmental Health Officer visited the Venue on 17 September, went through the licence with the licence holder and advised him of the potential for noise disturbance from people outside the Venue. The Officers looked at the CCTV but did not see any evidence of the Venue operating outside licenced hours or serving drinks without meals.
36. Most complainants then telephoned the Officers. Other residents said there was a dramatic improvement since the visit. The Officers wrote jointly to Mr X to update him.
37. In October 2018 Mr X complained the Venue served drinks without meals and it served customers after-hours. A Licensing Officer visited the Venue and watched the CCTV. He saw no evidence of a breach of the licensed hours or people drinking without a meal. He saw the only people in the Venue after-hours were the owners and staff cleaning up.
38. Mr X complained again to Licensing about people outside the restaurant. The Licensing Department told him this was not a breach of the licence.
39. In November 2018 Mr complained about noise from people outside the Venue. A Licensing Officer asked Mr X if would allow the Council to install a noise monitor in his home. Mr X refused. The Licensing Officer carried out a late-night unannounced visit. He saw several customers outside at 10:41 reducing to two by 10:54 p.m. He saw an average of two customers every half-hour standing outside.
40. The day after the inspection, the Licensing Officer wrote to Mr X to tell him what had happened. He said the licence holder had not breached the licence. He had asked the licence holder to oversee what went on outside but accepted he had a business to run. He said Licensing could not control noise in the street or people smoking. He suggested if Mr X wanted the Council to look into this he should contact Environmental Health and agree to fill in log sheets and use the noise monitor.
41. In November 2018 the Council wrote to Mr X and again told him he could ask for a review of the licence.
42. In January 2019 Mr X complained the Venue had traded after-hours on a Saturday. The Licensing Officer asked the licence holder about this. The licence holder said he closed the Venue before midnight and everyone but staff left before 12:30 a.m. The Licensing Officer checked the CCTV and says this confirmed what the licence holder said.
43. On 2 February 2019 Mr X complained about a noisy event with a DJ taking place. A Licensing Officer and an Environmental Health Officer visited the Venue. The licence holder said he did not have an event or a DJ on 2 February. The Officers checked the CCTV. They did not see evidence of any event and say the Venue was almost empty.
44. At 11:15 p.m. on 23 March 2019 Mr X emailed that people were shouting outside the Venue. He sent a photograph of 4 people on the pavement. The Licensing Officer asked the licence holder to try to control customers outside the Venue; the licence holder said he would.
45. In April 2019 another resident complained about people in the Venue after hours. The Council investigated and found some people were there after 12:30 a.m. but were people hired for entertainment. The Council wrote to the other resident. It said it the Licensing Officer had visited the Venue again. The licence holder reported feeling harassed and wanted to sell the business. The Council appreciated the other resident was bothered by noise outside the Venue and told her how to make a noise nuisance complaint. It said it had sent another resident information about how to ask for a review of the licence. It said if several residents endorsed a request for restricted hours the licensing committee may look at this favourably. The other resident shared this Council’s response with Mr X.
46. In May 2019 Mr X says there were about 30 to 40 people in the street banging drums and singing on the way to watch a football match at the Venue. He says the Council told him that was not a statutory nuisance but a public order issue.

Analysis

47. There is always the potential for tension between homes and entertainment premises in a city centre. Noise that might be unusual at night in a village is a regular and expected event in a busy city centre.
48. The Ombudsman cannot say if noise is a statutory nuisance or if a licence holder has broken licence conditions. These are the roles of the Council’s Licensing and Environmental Health Officers. Our role is to see if the Council has followed proper processes when investigating complaints of noise and breaches of a licence.
49. I have seen no evidence of fault by the Council. It advertised the proposed licence in 2016. It has made suggestions to reduce the disturbance Mr X reports. It has investigated Mr X’s concerns and acted when it has evidence. This includes a warning letter, reducing the Venue’s ability to get a TEN and imposing conditions.
50. The Council did not meet with Mr X in September 2018. This is not fault by the Council. The Council had no duty to meet him and has given reasons why it did not consider a meeting would help.
51. Both the Council and the Ombudsman have told Mr X he can ask for a review of the licence.
52. The Council cannot control noise in the street through the licensing system. The Council has offered to investigate if there is a statutory nuisance. The Council has asked Mr X to fill in diary sheets and have a sound monitor in his home. Mr X has not agreed to this. Unless he does the Council cannot investigate if noise of the street is linked to the Venue.

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Final decision

53. I have seen no evidence of fault by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman