Summary: The Ombudsman found no fault by the Council on Mr G’s complaint of it failing to properly investigate and take enforcement action against 3 venues for noise nuisance. The evidence shows the Council investigated and acted on his reports. Nor am I satisfied the Council gave him inaccurate information as claimed.

The complaint

1. Mr G complains the Council failed to:
1. Properly investigate his reports of noise nuisance from 3 licensed premises on the road he lives on;
2. Take enforcement action against the premises for statutory nuisance or breach of licensing conditions; and
3. Provide accurate information about other reports it received about these premises causing a noise nuisance.
2. As a result, the noise affects his quality of life as it regularly disturbs him late in to the evenings, places him under a great deal of strain, and he has been put to the time and trouble pursuing the complaint.

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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)
4. 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)

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Council: Guide to investigating a noise complaint

5. The aim of the guidance is to provide a consistent approach to the investigation of noise and nuisance complaints. There are 6 main steps to carrying out a full and proper investigation:

• Interview the complainant: this allows officers to get key information at the start
• Informing the complainant: this means giving a complainant information about how the investigation will proceed and what service they can expect
• Strategies for gathering evidence; this means gathering good quality, robust evidence. The best evidence is that witnessed first hand by an independent qualified person. It recognises there are cases where it is uncertain whether enough evidence can be obtained. This is the case, for example, where noise is of a moderate duration on a frequent or intermittent basis. A complainant is asked to complete diary sheets and the noise monitoring equipment is installed where it shows a difficulty witnessing the noise.
• Interviewing perpetrator under caution: this is for when there is a contravention of a notice
• Diary Sheets, time plots and monitoring equipment: time sheets are used with monitoring equipment
• Closure of case

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How I considered this complaint

6. I considered all the information Mr G sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. As the information sent contains third party information, I sent a redacted copy to Mr G. I sent a copy of my draft decision to Mr G and the Council. I considered Mr G’s response.

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What I found

7. Mr G moved in to his 6th floor, city centre apartment in early 2019. After refurbishment works on it were done 3 months later, he moved in and discovered a problem with noise. To reduce noise entering his accommodation, Mr G is arranging to install triple glazing.
8. The noise he complains about comes from 3 business properties, all near his home. One property is a drinking venue (venue A), the second is a bar (venue B), and the third is a bar and nightclub (venue C). Mr G claims despite making many reports to the Council about noise, it failed to stop it continuing.
9. The main source of noise was venue A, which he claims the Council wrongly treated as if it was a nightclub when assessing noise. It had no nightclub licence, for example. It should, therefore, only play music at the levels found in shops. This venue regularly disturbs him Friday and Saturday nights.
10. Venue B does not cause a problem when it operates normally but, he complains about ‘live’ music nights it has every 4th Friday which he says could play at concert levels. Some nights they had ‘unplugged’ nights but were still using large personal address systems.
11. Venue C was closed for refurbishment for a while and Mr G noted the Council acted promptly by serving an abatement notice when they put speakers in the garden area. This went against licensing conditions. The problem, Mr G believes, was noise escaping from doors when people entered and left the premises.
12. I now look at Mr G’s individual complaints:

Complaint a): failure to properly investigate and Complaint b): failure to take enforcement action

13. Mr G is unhappy with the way the Council investigated his reports of noise nuisance against the venues and its failure to take enforcement action. He gives the example of an officer confirming the Council would investigate his reports while he was away for 6 weeks over the summer. Upon his return, the officer said he did not investigate because Mr G was away and so could not be disturbed by noise. The officer could not recall telling Mr G investigations would be made during his 6-week absence.
14. He argues if the Council carried out proper investigations, it could have acted against some of the venues for breaches of licence conditions sooner.
15. The Council claimed Mr G was reluctant to complete diary logs or give statements but, monitoring was offered, and done.
16. While I will now consider what the Council did on reports against each venue, I accept not all of what it did can be neatly separated out between each site. All 3 venues are within a short distance of each other and Mr G’s apartment. This sometimes presented evidential problems in terms of identifying and establishing noise sources.
17. I now consider what the Council did when it received reports against each venue:

Venue A

• Mr G first reported noise to the Council in March 2019. The following day an officer wrote to the venue warning it to keep to noise conditions set out in its premises licence. A couple of weeks later, the venue replied. It said it believed it could make improvements to reduce noise escaping when customers entered and left the premises. The officer pointed out levels given in the noise report (a copy of which I have not seen) are not what the venue should have music set to but, were absolute limits. The level of amplified and non-amplified noise should allow customers to talk in comfort.
• The following month, Mr G reported further noise over the bank holiday, made worse by the venue keeping its doors open. The officer contacted the venue again and asked Mr G if he could monitor/assess the noise from his apartment if needed. It asked him to complete diary logs. In its complaint response, the Council accepted it failed to send him logs to complete.
• In early July, the Council wrote a warning letter to the venue about the report received of noise. Officers did not witness a noise nuisance when they visited Mr G the same month at 9pm and 1am although noise was audible in a bedroom which had windows open. This venue was not the source of the noise.
• Nor did officers witness a nuisance on 6 September when they visited at 7pm. They entered the venue and found no music. They found no nuisance during monitoring on 13/14 September from any of the venues.
• An officer witnessed noise during a visit on 28 September and wrote to the venue about the levels witnessed and the licence conditions.
• Officers again witnessed noise nuisance during their visit on 12 October.
• On 24 October, the Council served an abatement notice about playing amplified music. Officers carried out monitoring the following day and 8 days later but, found no nuisance.
• Mr G complained about noise on 11 November. Officers witnessed noise in breach of the premises licence. Officers spoke to the manager of the venue about the continued change in operating style which was against the premises licence. An officer told Mr G about the contact who again complained on 18 November. The police monitored on 23 and 24 November and again 3 and 5 days later but, found no nuisance from the venues.
• In early December, the Council told Mr G it was starting a licensing review and formal legal proceedings were in preparation.
• In February 2020, the Council started a premises licence review which meant a 28-day consultation period. Three months later, the Licensing Sub-Committee revoked the licence which the venue is appealing. The report before this Sub-Committee noted meetings were held with the venue in October 2019 about its operating style, for example. At another meeting, officers discussed social media promotions and events at the venue which breached the premises licence. Promoted events on social media showed entertainment with amplified live and recorded music (DJs). This satisfied officers these were regular events. The report contained evidence from September to November showing events, some showing DJs set up inside the venue.

Analysis

18. I found no fault on this complaint. Council officers responded to the initial report and took an informal approach to resolving the problem. It contacted the venue who explained what it could do. In its warning to the venue, the Council raised concerns about its licence conditions.
19. Officers again contacted the venue after receiving a further report and visited Mr G. Officers did not witness a noise nuisance.
20. Mr G was away for about 6 weeks over the summer and it was only in September after further reports did officers witness a noise nuisance and possible breach of planning condition. The Council warned the venue about this breach and went on to serve an abatement notice after carrying out further monitoring. While this did not provide evidence of the venue breaching the abatement notice, it did show a breach of the planning condition. The Council went on to revoke the licence which the venue is now appealing.
21. Government guidance says while effective enforcement is important to maintain public confidence in the planning system, enforcement action is discretionary. A council needs to act proportionately when responding to suspected breaches of planning control. (paragraph 58, National Planning Policy Framework)
22. I am satisfied the evidence shows the Council properly responded to, and investigated, Mr G’s reports of nuisance. They contacted the venue, told Mr G what was happening, and when officers witnessed a noise nuisance, they served an abatement notice. The Council did not have to immediately take formal enforcement action. It was not fault for it to try and work with the venue to bring about improvements to resolve the noise problem.
23. I am also satisfied the Council explained the difference between proceedings for noise nuisance and those for breach of premises licence. While both proceedings need evidence in support, acting on a breach of licence is a much slower process. The Council looked at the possibility of acting on a breach of licence as its letter to Mr G in July 2019 which explained the working hours of the out of hours licensing team who wanted to visit him. It also explained the breach of licence process is much slower than that for nuisance. It involves a 28-day consultation process. The Council then calls a meeting to discuss it, before deciding whether to revoke part or all the licence.
24. The Council accepted a failure to send logs for Mr G to complete early on but, I do not consider this caused him a significant injustice. This is because it was likely he would not have completed and returned them.

Venue B

• In June, the Council received a report from Mr G about loud music and an officer contacted the venue about it. The officer wanted to know what entertainment and music took place on the premises in a typical week as well as opening times. The venue provided the information the same day. Once or twice a month they would have a live band which would end by 11pm. An officer replied saying a visit would be done to witness what was happening. The officer again reminded them to keep doors shut.
• Officers did not witness a noise nuisance when they visited on 12 July.
• In August, Mr G again reported the venue for live music having been away for about 6 weeks. An officer told him of contact with the venue who he had asked to assess the noise levels played there and to carry out a on street assessment of noise. The officer explained no abatement notice was served on them because no specific nuisance was witnessed or shown with any regularity.
• The following month after a further report, the Council explained the venue was visited and they were reviewing their operation. As the front of the building is listed, options for sound proofing it are limited. The officer noted Mr G had not returned diary logs. Mr G pointed out it was unreasonable to expect him to go down to street level to identify the noise source. The officer asked for a date to carry out monitoring.
• The Council noted the problem using noise monitoring equipment was that of identifying the source because of multiple source locations involved. This is why it needed diary logs. Officer visits were limited in value because they only saw the situation at one point in time.
• The venue stopped having its monthly house band perform and were due to consider the suitability of the premises for live entertainment after its refurbishment. They changed the type of performance held before these works.
• An officer visited on 28 September and witnessed noise when the doors were opening. The officer also witnessed noise transmission through the fabric of the building in to Mr G’s apartment.
• The licence for this venue allowed for the performance of live music, playing recorded music, and facilities for making music.
• The Council confirmed the venue co-operated and reduced performances. It agreed to use low key minimally amplified performance. Keeping the door closed helps prevent noise escaping even with the constraints of the property itself.

Analysis

25. I found no fault on this complaint. The Council responded to Mr G’s initial report, contacted the venue about it, and carried out monitoring which failed to show a statutory nuisance. The Council explained to Mr G what contact it had with the venue and the need to carry out a street assessment of the noise, for example. Officers also explained the limitations to the physical alterations the venue could make to the historic, protected front of the building.
26. The Council managed to get the venue to make changes to how it operated to reduce noise from the building.

Venue C:

• The Council first received a report from Mr G in June 2019 and the owner of the venue was contacted. Officers discussed this with the venue and the need for a noise survey. An officer wrote to the venue about the complaint and suggested they walk half way up the street every now and then to check music was not audible. The venue replied the same day saying it constantly monitored sound levels as it had a nearby hotel. It would ask a specialist firm to carry out an independent noise report. Later that month, another officer wrote to the venue warning the Council had received a further noise complaint. The officer wanted an update about the independent report.
• In July, an officer visited Mr G’s home but witnessed no noise in the living room. The officer witnessed bass noise with the windows open. It was the only venue open at the time. The Council was also aware the venue had changed the way it used the outside area as it now had an outside bar with speakers in the garden. The Council served an abatement notice. This required it to stop playing amplified music and do certain insulation works. The same month the venue applied to change the layout of the place which involved refurbishment.
• After serving the notice, Mr G made a further report and an officer contacted the venue again. At a meeting, the venue agreed to do an acoustic survey in the area and the owners would act on the recommendations. They had already started to make some changes to reduce noise.
• Towards the end of August, Mr G returned and reported a continuing problem. The Council arranged to send a letter to all businesses about one of the problems raised which was emptying glasses for recycling. The Council updated Mr G about this and his reports about venue C.
• The following month the Council again met with the owners and a site visit and further monitoring found no noise problem. The Council says officers have not witnessed noise nuisance since serving the notice. The only diary logs received from Mr G were in October.
• The Council confirmed the premises were refurbished, which included a recommended lobby to reduce noise escaping when customers entered and left the venue. The Council is satisfied the venue complied with the terms of the abatement notice. Officers, despite reports from Mr G, were unable to witness noise from the venue during visits.

Analysis

27. I found no fault on this complaint. Within a month of Mr G reporting a noise nuisance, the Council visited and promptly served the venue with a noise abatement notice. An officer contacted the venue again after receiving a further report from Mr G which looked at arranging an acoustic survey by an independent firm. The venue agreed to do any recommended works.
28. Despite further reports from Mr G, officers did not witness any statutory nuisance. This meant they had no evidence on which to act for a breach of the abatement notice. By taking formal and informal action, the Council managed to get the venue to make changes to reduce noise.

Complaint c): inaccurate information

29. In July 2019, when making reports about noise nuisance against venue C, Mr G asked the Council if other residents had complained. An officer replied saying he had looked at the complaints history and found a complaint from a commercial premise the previous year about noise and licensing against venue C, but no residential complaints.
30. Mr G later complained the officer wrongly told him nobody else had complained.
31. In October, the officer wrote to Mr G explaining his was the only current live complaint against venues A, B and C. The previous report in 2018 was about venue C. The officer sent the full history of reports for the 3 venues.
32. The Council explained the officer believed Mr G’s request was only about venue C, as this was the venue he referred to in the email.

Analysis

33. I am not satisfied the officer’s response to Mr G was a deliberate attempt to mislead or provide inaccurate information. The officer reasonably assumed Mr G was interested about reports against venue C as Mr G’s email referred to the worst of noise coming from this venue. The onus was on Mr G to make it clear what information he wanted the officer to provide. I found no fault on this complaint.

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Final decision

34. The Ombudsman found no fault on Mr G’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman