Summary: Mr X complained the Council failed to act on his complaints about noise and breach of licensing conditions at two pubs near his holiday home. The Council was not at fault.

The complaint

1. Mr X complained the Council failed to act on his complaints about noise and breach of licencing conditions at two pubs near his holiday home. Mr X also complained about the Council's communication and complaints handling.
2. Mr X said this was frustrating and spoilt his enjoyment of the holiday home.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Mr X first complained to the Council in 2017. There is no good reason to investigate further back than July 2019, when Mr X sent a new formal complaint letter to the Council.

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How I considered this complaint

6. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• council policies and relevant law and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant Law and Guidance

Statutory Nuisance

8. The Environmental Protection Act 1990 sets out the criteria for when noise counts as a 'statutory nuisance'. It must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and
• injure health or be likely to injure health
9. If the Council decides the noise is a statutory nuisance, it must issue an abatement notice. Abatement notices require the person responsible to stop or reduce the noise. Refusal to comply with abatement notices can result in prosecution and fines.
10. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
11. Whether noise is a statutory nuisance is determined by an officer of the Council, usually an Environmental Health Officer (EHO). The officer assesses the level of noise, how long it occurs for and when and where it happens.
12. The Council's policy says that when it received a noise complaint, it will ask the complainant to log the noise over a two or three week period. If the EHO considers further investigation is warranted, the Council can ask the complainant to have noise monitoring equipment installed in their house and/or visit the property to witness the noise. If equipment does not establish a statutory nuisance, the complaint is closed.
13. If the Council finds the noise is an issue but not a statutory nuisance, it can take informal action. This can include writing to the person responsible or arranging mediation.

Licensing

14. Properties that sell alcohol must have a valid licence. Licencing authorities (the Council) can place conditions on the licence which require the business to take certain actions to reduce the impact on neighbours. This can include requiring the properties to keep doors and windows shut when music is played.
15. The Council's policy says responsible authorities and ‘other persons’ can make an application asking the Council to review a license.
16. If a property is in breach of its licencing conditions the authority can amend or rescind its licence subject to a review. Government guidance encourages licencing authorities to take informal action, such as writing to the property owner, first.

Complaints handling

17. The Council has a two stage complaints procedure. Its policy says after receiving a stage one complaint, the Council will tell the complainant what will happen next. It will try and respond within 20 working days. It will respond to stage two complaints within 20 working days.

What happened

18. In late July 2019, Mr X complained to the Council about noise coming from two hotels near his holiday home. He also said the hotels were breaching their licencing conditions, contributing to the noise. Mr X sent the Council video and photographic evidence running over three years.
19. In late August 2019, Mr X told the Council it had not responded to his letter in July 2019 and enclosed more evidence.
20. The Council responded to apologise. It said it had failed to record his July 2019 complaint properly. It confirmed it was investigating the noise. In its response to my enquiries, the Council said it did not ask Mr X to fill out noise logs because it felt the evidence he sent in July was sufficient for it to start investigating.
21. A Council EHO and a member of staff from its Licensing team visited the hotels in early September and late September. The Council says during the visits the EHO told the hotels about receiving a complaint and discussed possible ways to mitigate the noise. The Licensing officer reminded the hotels about the licensing conditions. The Council did not identify any major issues during the visits. Following the visits, one of the hotels moved the location of its live band to try and reduce the noise.
22. In late September, Mr X made a corporate complaint to the Council about its handling of his noise complaint. The Council responded informally in early October. It confirmed it had visited the hotels and said it would:
• visit one of the hotels again as it had been unable to speak to the manager on previous visits;
• write to the hotel managers to confirm the outcome of the visits and what they needed to do in future;
• like Mr X to have noise monitoring equipment set up in his flat. It asked him to get in touch to arrange collection of the equipment.
23. Throughout October, Mr X contacted the Council about the hotels and discussed why the noise monitoring equipment was necessary. The Council explained Mr X could ask it to review the hotel’s licenses.
24. In late October, Mr X asked the Council to respond to his corporate complaint. The Council replied to say it was not appropriate to deal with Mr X’s concerns as a corporate complaint until its investigation was complete.
25. The Council visited one of the hotels again in late November 2019, to speak to its manager.
26. Mr X wrote to the Council in early February 2020 asking for an update on its investigation. He also said he remained unhappy the Council had decided not to accept his corporate complaint from September 2019.
27. The Council issued its stage one response in early March and said Mr X had not agreed to have noise monitoring equipment installed in his home and had not applied for a license review. He had not complained about any more noise. It therefore closed its investigation. Mr X would have to complain again if the noise came back.
28. Mr X was dissatisfied with this. In early March 2020 he wrote to the Council and said:
• it did not inform him when it closed its investigation;
• it did not tell him it required him to use the monitoring equipment or it would not investigate the noise; and
• he was unhappy the Council told him he would need to make new complaints if the noise continued.
29. The Council responded to Mr X in early June 2020. It said it was satisfied it had responded to Mr X’s concerns about the noise and licensing appropriately. It had decided the evidence Mr X sent did not prove the noise was a statutory nuisance. Without more evidence from the noise monitoring equipment, it could not take further action.
30. Mr X told me he did not have the noise monitoring equipment fitted because it would have been inconvenient to collect it from the Council. He also felt the evidence he had sent was sufficient and the Council should not have required more before taking formal action.
31. In its response to my enquiries, the Council confirmed it had received one other complaint about noise from one of the hotels in the period from July 2019 to July 2020. The complaint did not progress as the complainant did not provide any noise logs.

Findings

Noise

32. The Ombudsman cannot question a Council's decision where it is made without fault. Mr X says the Council did not properly consider the evidence he sent or act on it appropriately. The Council accepted the evidence Mr X sent in July 2019 showed the noise was an issue and so did not ask him to make more noise logs. It took informal action in visiting the hotels in September 2019 and discussing ways to reduce the noise. This was an appropriate initial response to Mr X’s concerns.
33. Enforcement action for statutory noise nuisance requires contemporary evidence that can be relied upon if the case progresses to prosecution. The Council considered whether the videos reliably proved if the noise was a statutory nuisance and decided they did not. There was no evidence of fault in how the Council made its decision so I cannot question it.
34. The Council asked Mr X to have noise monitoring equipment installed in his property. It explained why it considered the equipment necessary. Mr X did not contact the Council to collect the equipment. The Council therefore closed his complaint, in line with its policy. The Council was not at fault for closing the complaint when it could not take any further action without more evidence.

Licensing

35. Government guidance encourages councils to take informal action when they receive complaints that commercial properties are breaching their licensing conditions. When the Council visited the hotels in September 2019, it also confirmed the licensing conditions in place. This was appropriate informal action and was not fault.
36. The Council later told Mr X how he could ask for a review of the hotel licenses. Mr X did not make an application. Reviews can also be triggered when councils receive several complaints about noise from a premises. The Council only received one other complaint about noise from one of the hotels in 2019-2020. The Council was not at fault for deciding not to carry out a review of the hotel licenses.

Communication and complaints handling

37. The Ombudsman expects councils to respond to noise complaints promptly and to provide updates when there has a been a significant event. The Council did not properly record Mr X’s noise complaint in July 2019, so it did not take any action until he got back in contact in August 2019. I am satisfied that while it was investigating, the Council kept Mr X informed of key developments. However, once Mr X failed to arrange to have the monitoring equipment fitted in his home, the Council closed his noise complaint and did not tell him.
38. The Council’s corporate complaints procedure says that when someone complains, it will tell them what will happen next. Mr X complained in September 2019, but the Council initially responded to him informally. One month later, the Council told Mr X it would not deal with his complaint under its corporate complaints procedure until it completed its investigation into the noise.
39. However, I do not consider the issues noted in paragraphs 37 and 38 warrant a finding of fault. The delay to the investigation was minimal and Mr X did not contact the Council about the noise from November 2019 to February 2020. If he had, the Council could have told him the complaint was closed and to start a new complaint if the noise had recurred. Although the Council did not immediately tell Mr X it would not deal with his complaint under its corporate procedure, it continued to respond to his contact throughout October, addressing his concerns.

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Final decision

40. I have completed my investigation. I have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman