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Bristol City Council (19 002 308)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 13 Mar 2020

The Ombudsman's final decision:

Summary: The Ombudsman upholds Mr X’s complaint about the Council’s handling of his noise nuisance complaint. The Council’s communication and record keeping was poor. The Council was not at fault for deciding the noise was not a statutory nuisance. The Council will apologise to Mr X and carry out service improvements.

The complaint

  1. Mr X complains the Council has been slow to respond to concerns he has raised about noise nuisance from a business near his home. He says he has been reporting issues since February 2018 but the Council has not taken enforcement action and its communication has been poor. Mr X also complains about the Council’s response to his complaint which he says was late and contained errors. Mr X says the noise has affected his sleep and enjoyment of his home, and he has been put to the inconvenience of chasing officers and making complaints.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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

  1. I have considered the complaint made by Mr X.
  2. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
  3. I gave Mr X and the Council an opportunity to comment on my draft decision and I considered their responses.

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What I found

Council procedures

Noise nuisance

  1. The Council’s noise nuisance procedure says trained and experienced officers will assess alleged noise nuisance and its likely effect on an average person on a case by case basis. Officers will consider issues such as reasonableness, volume, duration, time of day, frequency and any particularly disturbing qualities of the noise.
  2. Residents with concerns about noise can log their concerns online or by contacting customer services. The Council will ask them to complete a noise diary for 14 days and submit this within 42 days. Once returned, a case officer will aim to consider the complaint and take any necessary action within 15 days.
  3. If the noise diary shows the problem may be a nuisance, the Council will contact the alleged perpetrator in writing, sending a warning letter or a community protection warning.
  4. If the problem persists, the case officer will decide on the best way to gather evidence. This may include installing noise monitoring equipment, using the Noise App, or site visits at times when noise is most likely to be occurring. The case officer aims to review each case every four weeks.
  5. If the Council finds the noise is a statutory nuisance, it will serve an abatement notice on the responsible person.
  6. Where concerns relate to noisy patrons outside licensed premises, officers should visit the premises to see what controls exist to prevent this. In these cases, the procedure recommends officers take action using the Council’s licensing enforcement powers.
  7. The Noise Act 1996 provides an alternative means of addressing disturbances caused by excessive noise even where it does not constitute a statutory nuisance. Councils are not required to adopt the Act.

Licensing enforcement

  1. The Council’s licensing policy says it expects licensees to show how they intend to prevent public nuisance arising from noise or other disturbance from customers. It says this will be particularly important where there are residential properties near licensed premises. The Council will consider the adequacy of proposed measures to remove or manage the potential for public nuisance.
  2. The Council’s enforcement policy says any action taken will depend on the circumstances and the approach of the business or regulated person to dealing with the issue. This may include informal action in the form of advice or a warning, or formal action in the form of a statutory notice or investigation.

Complaints

  1. The Council runs a two-stage complaints procedure. At the first stage, it aims to respond within 15 working days. At the second stage, it aims to respond within 20 working days.

What happened

  1. Mr X says he began reporting concerns to the Council about noise from a nearby licensed premises in March 2018. The Council opened a noise nuisance investigation. It issued a letter to the premises asking that it move customers on and act to control the noise levels.
  2. After a brief period with no concerns about the noise, Mr X reported the problem recurred in April. The Council carried out a site visit in early May. The Council has no records of this visit, though in a later letter from the premises to the Council it notes the Council had no concerns.
  3. In June, Mr X wrote to the Council to say issues with customers outside the premises were continuing. He said he had been unable to contact the out of hours team for two weeks and had not heard from the officer dealing with the case.
  4. In July, the Council wrote to the premises reminding it of its licensing objectives about public safety and preventing a public nuisance. It said large numbers of customers were congregating outside. It advised a table and chairs placed outside may be an offence under the Highways Act 1980. It asked the premises to respond setting out the steps it would take to address the concerns raised.
  5. The Council carried out a further site visit in July. It decided noise from the premises was not a statutory nuisance. Officers noted customers were sitting at the table and chairs on the road outside, in breach of the premises’ licence conditions. The Council raised this with the premises and it removed the table and chairs.
  6. The premises responded to the Council at the end of the month explaining how it had tried to reduce the impact of its customers on the residents.
  7. The Council closed the noise nuisance case at the end of July and began dealing with the issue as a licensing enforcement matter.
  8. Mr X contacted his local councillor with his continuing concerns in August. The Council said the case would remain open and it would carry out monitoring. It said the premises would keep a record of any complaints it received about noise.
  9. Mr X contacted his councillor again in September raising concerns about the noise. The councillor suggested the Council carry out a licensing review.
  10. The officer assigned to deal with the case returned to work in September after an extended absence. The officer told Mr X the Council had identified anomalies in the current premises licence. He acknowledged the situation with the noise had been going on for too long. He said an amended licence had been sent to the licence holder’s solicitor. It was the officer’s opinion that a review of the premises licence would be a final sanction when all other efforts to resolve the situation had failed.
  11. The officer notified the premises management of Mr X’s latest concerns and arrange to meet with them. There is no written record of a visit.
  12. The officer subsequently arranged to visit Mr X in early October. Mr X provided a copy of his noise diary and some recent video footage from outside the premises.
  13. In mid-October, the premises offered to provide CCTV to the Council. The officer said he would arrange to visit. There is no written record of a visit.
  14. In mid-November Mr X reported the noise had been slightly better. He asked the Council for an update on the amended licence. The Council did not reply.
  15. Mr X contacted the Council again in mid-December to say problems were continuing. The Council replied to say the amended licence had not been resolved as the conditions were disputed. The Council had scheduled a meeting with the premises the following week and would let Mr X know the outcome.
  16. Mr X asked the Council to serve an abatement notice under the Noise Act 1996, regardless of the ongoing licensing issue. He said if the Council could not issue an abatement notice, it should provide a written explanation why. He requested an update by the end of December. The Council did not respond.
  17. The Council met with the premises management in mid-December to outline its position on the amended licence. The management contested the Council’s view. The Council says it did not hear further from Mr X.
  18. The Council carried out a premises visit later in December. The enforcement officer asked visiting officers to observe the behaviours of customers outside the premises. There is no written record of the visit.
  19. Mr X complained to the Council in February 2019. He was unhappy with the action the Council had taken to address the noise, and its poor communication with him. The Council’s first response, sent three weeks later, said it had written to the premises to tell it customers were not allowed to gather outside. It said it had not received any further reports from Mr X or other residents, so had not taken any further enforcement action. The Council said it was planning to carry out more checks from April.
  20. Mr X escalated his complaint to the second stage of the Council’s procedure. He still wanted the Council to issue an abatement notice under the Noise Act 1996. He felt the Council should have enough information in the noise diaries and CCTV to decide there was a statutory nuisance.
  21. The Council responded in mid-April. It said the delay in responding was due to a high volume of work. It said Mr X had been in frequent communication with officers, though the Council had not responded to one message in mid-December. The Council was satisfied officers had considered the evidence Mr X had provided and made decisions based on their knowledge and expertise. It said it had taken action and officers had decided there was not enough evidence of a statutory nuisance. The Council said it had not adopted the Noise Act 1996 so could not issue a notice based on this legislation. The Council invited Mr X to contact the case officer again to look for alternative solutions to minimise disturbance from the premises. Finally, the Council provided guidance on how Mr X could make representations about applications to vary licences.
  22. The premises later applied to vary its licence. Mr X was able to raise objections to the application. The licensing committee rejected the application in May 2019.
  23. In his complaint to the Ombudsman, Mr X said the Council’s response contained errors and missing details about his original complaint. He disputed the Council’s conclusion there was not enough evidence to serve a noise abatement notice. He reiterated that communication from the Council had been poor. He said he had over twelve months of detailed noise diaries, recorded video evidence and police reports to support his view.
  24. Mr X has not responded to requests from the Ombudsman for further information about his complaint. It took the Council several months to provide some of the information requested as part of this investigation as it could not access some of the records.

Analysis

  1. The Council said it first looked at the complaint from a noise nuisance perspective, but it eventually decided to deal with the matter as a licensing issue. The Council’s policy allows for this. The Council decided there was no evidence of a statutory nuisance. The Council also decided to deal with the licensing issue through informal action. These are decisions the Council was entitled to make.
  2. However, there is no evidence the Council communicated with Mr X about its decision to close the noise nuisance investigation and deal with it as a licensing enforcement matter. This was fault.
  3. There is no written record of several of the Council’s visits to the premises. This makes it difficult to determine what action the Council was taking, other than amending the licence. This is fault.
  4. Mr X first asked the Council to serve an abatement notice under the Noise Act 1996 in December, but it took until the following April for the Council to tell him it had not adopted the Act. This poor communication was fault.
  5. The Council issued its first response to the complaint within the deadline set. The second response took 35 working days, three weeks longer than the deadline set. This delay was fault.
  6. I have not found fault in the Council’s decision the noise was not a statutory nuisance. However, the faults I have identified caused Mr X uncertainty due to not knowing how the Council was addressing his concerns, and frustration in having to contact his councillor and make complaints to seek resolution.

Agreed action

  1. Within a month of this decision, the Council will:
    • Apologise to Mr X for the injustice caused by the faults identified in this investigation.
    • Provide evidence it has reminded officers of the need to store case-specific files so they can be accessed by any member of the team.
    • Remind officers of the need to review noise nuisance cases every four weeks. Officers should communicate the outcome of each review to the complainant in each case. If the Council decides to close a case it should communicate its decision in writing.
    • Remind officers responding to complaints at stage two of the deadline for responding.

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Final decision

  1. I have completed my investigation. Mr X was caused an injustice by the actions of the Council and it will take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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