Shropshire Council (19 000 512)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 21 Feb 2020

The Ombudsman's final decision:

Summary: Mr and Mrs X complained the Council failed to consult them when it granted planning permission for a balcony extension at a neighbouring business, and failed to deal with their complaints of noise nuisance and light glare. There was no fault in how the Council consulted on, and reached the decision to approve the planning application, or in the way it investigated and responded to their complaints of noise and light glare.

The complaint

  1. Mr and Mrs X complain the Council failed to consult them and failed to properly consider the impact on them, when it granted planning permission for a balcony extension at a neighbouring business. In addition, the Council has failed to deal with their complaints of noise nuisance and light glare from the business since the balcony was constructed.
  2. This has caused them nuisance and disturbance, affecting their sleep and their child’s privacy as their bedroom is opposite the balcony.

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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 have considered the information provided by Mr and Mrs X. I have considered the information the Council provided in response to my enquiries.
  2. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision and considered any comments I received before I reached a final decision.

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What I found

Legal and administrative background

Planning

  1. Planning permission is required for the development of land (including its material change of use).
  2. Councils are required to give publicity to planning applications.  The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website. In this case, the requirement was also for a site notice, a newspaper advert and neighbour notification.

Noise and statutory nuisance

  1. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to abate such nuisance. In relation to noise, a statutory nuisance is a “noise emitted from premises so as to be prejudicial to health or a nuisance”.
  2. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement taking into account several factors such as the type of activity, locality, time of day, frequency and duration of the noise.
  3. The Council is required to investigate complaints of noise nuisance. It will gather evidence to establish whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped. Failure to comply with an abatement notice can result in court action and a fine.
  4. The primary aim of any action is to modify the behaviour of the perpetrator. However, the Council cannot take action against the perpetrators of noise without robust evidence.
  5. A company can avoid prosecution for breaches of abatement notice if it can prove the best practicable means were used to prevent or counteract the effects of the nuisance.
  6. 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
  7. The Council’s ‘better regulation and enforcement policy’ sets out that the ‘primary aim is tor prevent non-compliance rather than be in a position where we have to take enforcement action. We will do this by developing our relationships with local business and responding to their needs by appropriate sign-posting to relevant sources of information and support outside the council as well as officers providing accurate, pragmatic and robust advice directly to businesses’.

Licensing

  1. The Licensing Act 2003 sets out in law which businesses may require a licence to sell alcohol and what licence they may require. Councils are the body responsible for issuing such licenses. The Licensing Act 2003 sets out four objectives which are:
    • prevention of crime and disorder;
    • public safety;
    • prevention of public nuisance;
    • protection of children from harm.
  2. A responsible authority or another person can ask councils to review a licence if they consider an objective of the Licensing Act 2003 is not being met. A licensee can also apply for a variation to the licence to amend the operating schedule.
  3. Representations can be made in support of or in opposition to a license application. They must be relevant and relate to one of the four licensing objectives. Conditions can be attached to a license which are either volunteered by an applicant or following upheld representations made by a responsible authority or interested party.

What happened

  1. In 2017 a licensed business applied to erect a balcony at the rear of the property, over an existing outside seating area.
  2. The Council consulted the local town council and relevant statutory consultees. It published a notice in the newspaper and the applicant displayed a site notice outside the business. The Council received no public comments.
  3. In their report the Council’s case officer noted there may be a small increase in noise levels. However, they did not consider this would be significant as the balcony would be at least 10 metres from neighbouring properties. The Council approved the application and the balcony was constructed in 2018.
  4. Mr and Mrs X live to the rear of the licensed business. In summer 2018 Mr and Mrs X emailed the Council’s planning department to raise concerns about the noise and building works to create the balcony. The Council considered that, in planning terms, as the balcony was over 50 metres away from their boundary, this was sufficient distance to minimise any adverse impact of the works.
  5. In late summer 2018 Mr and Mrs X complained to the Council about noise from the balcony and the glare of the lights impacting on their child’s bedroom. Two other neighbours also complained about noise. They completed and submitted diary sheets to the Council. The Council’s Out of Hours Service made four visits to observe the noise between September and October 2018, in response to calls from Mr and Mrs X and other residents. It considered the noise from the balcony was unacceptable and clearly audible inside the residential property with windows closed. The Council’s case officer from Environmental Protection also visited in October 2018 and witnessed noise from within two separate residential properties which they considered would create a substantial impact after 23:00 and would amount to a statutory nuisance if it occurred regularly. The Council spoke to the business which confirmed it would close the balcony by 23:00 to prevent any statutory nuisance occurring.
  6. Mr and Mrs X complained to the Council’s Planning Department in October 2018 about the balcony.
  7. In November 2018 Mr and Mrs X contacted the Council’s Licensing Department with concerns the landlord was breaching the premises licence by serving customers later than allowed by the licence.
  8. The Out of Hours Service carried out three further monitoring visits in November 2018. As complaints had continued, in December 2018, the Council met with the business. The business confirmed it was closing the balcony at 23:00. It had also disconnected an external speaker. However, when asked to leave the balcony, customers were migrating to the ground floor level and noise was continuing. The Council considered the noise was a public nuisance under the Licensing Act. The Council asked the business to submit a licence variation to alter their premises licence in line with conditions it recommended to prevent nuisance. It asked the business to do this by mid-January 2019.
  9. In December 2018 the case officer visited Mr and Mrs X and a neighbour and took light meter readings from their properties. They monitored the light levels against the standards set out in the ‘Guidance Notes for the Reduction of Obtrusive Light’ by the Institution of Lighting Engineers. They found the level of light reading was not significantly high but recognised there was glare. The Council says it contacted the business which angled one of the lights downwards. However, Mr and Mrs X say this had no impact.
  10. In December 2018 the Council responded to Mr and Mrs X’s complaint. Its view was that the premises licence had out of date conditions making it difficult to enforce. It considered the licensing process was the most appropriate way to address their concerns.
  11. The Council met with the business and set out the conditions it required in the variation licence application including: closing the balcony at 22:00; no use of the external ground floor after 23:00; and doors closed at all times except for access and egress. The Council considered residents should expect a certain amount of noise from an established venue with a large external area. Its proposals sought to minimise the impact at night.
  12. The business submitted a licence variation in late January 2019. This was later than initially agreed due to personal reasons. The variation application did not follow with the Council’s recommendations to prevent a public nuisance. So, the Council’s Environmental Protection put representations forward. Mr and Mrs X and other residents also submitted their representations.
  13. Mr and Mrs X submitted a formal complaint to the Council in January 2019 on behalf of them and the residents of two neighbouring properties. They complained they were not consulted about the balcony at the planning application stage, and about the Council’s delay in taking action regarding the noise and light glare.
  14. In March 2019 the Council’s Licensing Committee placed conditions on the licence in line with the Council’s recommendations and having considered all the representations received. This included ensuring the balcony was empty by 22:00 and the ground floor external area was empty by 23:00. The Environmental Protection officer was satisfied there was now no public nuisance or statutory nuisance and that licence breaches would be for the Licensing Team. The Out of Hours Team carried out two visits and found no obvious licence breaches.
  15. In April 2019 the Council responded to the complaint. It concluded the Council had consulted properly on the planning application and the planning officer had considered the impact of the balcony on amenity. It found the Council had not provided a timely response to their complaint to the planning service in October 2018 and apologised for this. However it did not find undue delay in the actions it took in response to their noise complaints. It acknowledged it could have reduced the timeline had the Council given the business owner less time to act on their advice. However, it considered this appropriate in the circumstances and in line with its enforcement policy. Mr and Mrs X remained unhappy and asked to go to the next stage of the complaints’ procedure.
  16. The Council continued to receive complaints about noise. The Out of Hours Team visited the business on six occasions in June 2019. It found the noise did impact on residents. On one occasion it found the self-closing mechanism was not working properly on the door, so was left open. The Council’s licence team followed this up and found minor breaches of the licence which it raised with the business, but it decided not to take formal action.
  17. The Out of Hours Team contacted the case officer and advised it had witnessed noise disturbance affecting Mr and Mrs X and two other residents on many occasions. It stated:

‘it is clear the impact of the noise has a significant impact on the ability of the residents to enjoy their property, the disturbance can last for many hours, and is likely to occur whenever the outside areas are in use, particularly when the weather is fine. If the disturbance was from music then without doubt it would amount to a statutory noise nuisance.

However as we are all aware people noise is much more difficult to deal with……, and that consideration has to be given to the fact that [the business] is a long established and well run venue in a town centre location.

Talking to the residents they seem confused about what action the Council can/ is willing to take to deal with daytime and evening noise.

If it has been concluded that the disturbance does not amount to a statutory nuisance then that decision needs to be clearly conveyed to the residents so that the matter can be closed’.

  1. In June 2019 the Council wrote to Mr and Mrs X and the other residents. The letter set out that the Council did not consider the noise from the business to be a statutory nuisance under the Environmental Protection Act 1990 or a public nuisance under the Licensing Act 2003. This was due to the time of day the noise occurred and the noise not being unreasonable for that type of premises which had planning permission to operate as such. It therefore closed the investigation.
  2. In July 2019 the Council responded at stage 2 of its complaints’ procedure. It found the Council had followed the processes correctly. In relation to ongoing issues it stated it would consider any new noise concerns reported by Mr and Mrs X, but to date investigations concluded there was no evidence to suggest a statutory nuisance was occurring. It advised Mr and Mrs X of how they could take their own private action.
  3. Mr and Mrs X and their neighbours continued to raise complaints of noise and breaches of the licence. The Council considered the issues they raised but remained of the view that no statutory nuisance was occurring, and the breaches were not significant enough to present a risk which would justify enforcement. The Council has since said it will not respond to further complaints from Mrs and Mrs X about the same issues and it will take no further action unless it considers it appropriate to do so.

Findings

Planning permission

  1. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
  2. The Council consulted on the planning application in line with its consultation policy. The Council was not required to consult Mr and Mrs X separately. The business displayed a site notice and the application was advertised appropriately. The Council was not at fault. Mr and Mrs X were unaware of the application and so did not have the opportunity to object to it but that was not due to fault by the Council.
  3. Mr and Mrs X consider the officer should have been aware of the potential impact on them. The records show that before the decision was made, the Council considered:
    • the application plan, which included a site location plan;
    • details from the planning officer’s site visit;
    • the planning officer’s recommendations, which included the officer’s views on the potential impact on neighbour amenity.
  4. While there is no specific reference to Mr and Mrs X’s circumstances, we do not expect case officer’s reports to include every possible planning consideration. The courts have made it clear that these reports do not have to be perfect, but adequate. They need to show that the key planning considerations have been taking into account. The planning officer’s report shows that the impact on neighbours was considered, along with other material planning considerations. In these circumstances, there was no evidence of fault in how the Council made its decision.
  5. The Council’s view was that the distance between the business and Mr and Mrs X’s property was more than sufficient to minimise any adverse impact. There is no fault in the way the Council reached this view based on the information it had at that time.

Noise and light

  1. 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.
  2. The Council responded to Mr and Mrs X and other residents when they complained of noise. It carried out site visits and visits to their properties. It sought to take action, in line with its enforcement policy, initially through discussion with the business. It did consider noise after 23:00 could be a statutory nuisance and the business agreed to close the balcony after that time. The Council’s actions were in line with its enforcement policy and it is not at fault. When noise continued to affect residents, it sought to use its licensing powers to address this. The Council considered the original licence was outdated and difficult to enforce, so it asked the business to submit a licence variation. There was a delay in the business submitting the licence variation which the Council considered acceptable in the circumstances. It made strong representations to ensure the licence conditions prevented public nuisance.
  3. The Council monitored the business’s compliance with the new licensing conditions. When Mr and Mrs X raised concerns about licence breaches, including a door being left open, and the level of noise, the Council carried out site visits and spoke with the business to address this. The Council’s actions were appropriate and not fault. The Council explained to Mr and Mrs X, in late June 2019, why it concluded there was no statutory nuisance or public nuisance and that it had closed the investigation.
  4. The Council accepts Mr and Mrs X and other residents are disturbed by noise. However, given the nature of the business and time of day the noise occurs it is the Council’s view that it does not constitute a statutory nuisance. In addition, the business is complying with the license conditions. There is no fault in the way the Council has investigated Mr and Mrs X’s concerns or in the way it has reached the decision there is no statutory nuisance.
  5. The Council monitored the impact of the light on Mr and Mrs X’s property. The level was within the acceptable range for obtrusive light set out in the relevant guidance. Mr and Mrs X’s property is still affected by glare however the Council said it is not at a level which warrants further action against the business. There is no fault in the way the Council responded to Mr and Mrs X’s concerns.

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Final decision

  1. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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