The Ombudsman's final decision:
Summary: Mr W complains the Council has failed to investigate his noise complaint about a local bar. He also says the Council started a review of the bar’s licence conditions without consulting him and other local residents. We found the Council failed to investigate the existence of a statutory nuisance in the early stages of his complaint. It also failed to respond to Mr W’s concerns and maintain contact with him. This caused Mr W an injustice and so we have recommended a remedy. As to the licence review, the Council was at fault for failing to update its policy on advertising consultations. However, this did not cause Mr W an injustice since the consultation was still advertised in a manner consistent with the law.
- The complainant, who I refer to as Mr W, is making a complaint about the Council for failing to investigate his noise complaint. Specifically, Mr W says his property overlooks a bar patio which is resulting in excessive noise until late in the evenings and early mornings. He explains that he reported this matter to the Council which has failed to take any action against the bar occupiers.
- In addition, Mr W says the Council has failed to inform him about a review of the bar’s licence in order to assess whether the attached conditions are appropriate.
- Mr W said this matter is causing him to lose sleep which in turn is impacting on his health. As a desired outcome, he would like the Council to conduct a full and detailed noise nuisance investigation. Further, he would like the Council to consider his views with respect to the outcome of the licence review.
What I have investigated
- I have investigated the following matters:
- The Council’s responsiveness to Mr W’s formal complaints and any unreasonable delays in investigating his noise complaint.
- Whether the Council has met its legal obligation under the Environmental Protection Act 1990 to investigate all noise complaints.
- Whether the Council was at fault for failing to notify Mr W as an interested local resident about the licence review of the bar in question.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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).
- 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
How I considered this complaint
- I have reviewed Mr W’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. Both Mr W and the Council received an opportunity to comment on a draft of my decision. Each of their comments were considered before a final decision was made.
What I found
Background and legislative framework
Statutory noise nuisance
- A statutory nuisance is defined by the Environmental Protection Act 1990 (“the EPA 1990”) and can include noise disturbances. For noise to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premise; injure health or be likely to injure health.
- Councils have a legal duty to investigate noise complaints. Where they are satisfied a statutory nuisance exists, they are required to serve an abatement notice, that is, an instruction to cease, or minimise, the disturbance. Whether a statutory nuisance exists is for a professionally qualified Environmental Health Officer to decide following a period of investigation.
- The Licensing Act 2003 sets out in law which businesses may need a licence to sell alcohol and what type of licence a business may need. The Act also specifies what fees may be charged and how to request a review or make an objection to a licence being issued. All businesses and event holders must obtain a licence before they can sell alcohol to the public.
- Licensing conditions are restrictions attached to a licensing permission which dictate how the premises can operate. If the Council considers the reasons for making representations or calling for a review are relevant, it will arrange a hearing to consider the evidence. Representations and requests for the review of a licence must be made in writing. If the complainant disagrees with the council’s decision following a hearing, they have the right to appeal to the magistrates’ court. Any person or body has the right to appeal against a decision in the courts, as long as they made relevant representations about the original licence application (or a variation or review of a licence), or they are the applicant.
- Complaints about the result of the hearing by the applicant or an objector would therefore be considered outside jurisdiction for the Ombudsman under s26(6)(c) of the Local Government Act 1974.
Chronology of events
- In April 2018, Mr W made a noise complaint to the Council. The same month, the Council acknowledged Mr W’s complaint and explained it would investigate and write to the occupiers of the bar to request they control the noise. The Council also enclosed noise logs for Mr W to complete.
- In May 2018, Mr W sent the Council his noise logs. The Council wrote to Mr W the same month to acknowledge his completed noise logs. It also confirmed the matter would be investigated further and that it would contact the bar to discuss its licence conditions. The Council also said it may be necessary to install noise monitoring equipment at Mr W’s property.
- In June 2018, Mr W put in further noise logs, though no response from the Council was forthcoming. For four months, Mr W contacted the Council for an update about his noise complaint. He did not receive a response.
- In September 2018, Mr W made a complaint to the Council about him not receiving a response about his noise complaint. The Council did not respond.
- In December 2018, the Council sent an officer to visit Mr W to discuss his noise complaint in further detail. However, Mr W says this did not result in any monitoring of the noise by the Council.
- In March 2019, the Council held a licence review hearing in respect of the bar. The hearing was arranged following a complaint from another local resident about noise. The purpose of the review was to assess the bar’s licence and determine if any additional conditions needed to be attached to its license to operate.
- In April 2019, Mr W made a further complaint to the Council. He said the Council failed to inform local residents about the licence review of the bar which was contrary to its written policy. Further, Mr W emphasised that his noise complaint had not been investigated for over a year.
- In May 2019, the Council responded to Mr W to explain that its published policy of writing to local residents ahead of a licence review was out of date. It apologised to Mr W and said its policy was amended to the effect that licence reviews are now advertised on the Council’s website. Moreover, the Council said the consultation period for the license review had now ended and that a determination notice was served in April 2019.
- In June 2019, Mr W escalated his complaint to the Council. He said that by failing to notify local residents about the review, the Council had not met its duty to consider the needs of local residents.
- Between February and July 2020, Mr W chased the Council for a response to his complaint. No response was received.
- Between 2020 to early 2021, the Covid-19 pandemic resulted in lockdown measures which meant the bar in question was not operating as normal for a period of 17 months. It also meant the Council was operating a reduced service due to the pressures the pandemic brought.
- In July 2021, the Council responded to Mr W’s stage two complaint. The Council apologised to Mr W for the delay in response to his noise complaint. On the issue of the licence review, the Council explained it had complied with the law by placing notices on the premises and at its offices. However, it apologised again for not updating its written policy online that it would no longer write to local residents who held interests in the review process.
- In addition, the Council installed noise monitoring equipment at Mr W’s property. To date, the Council’s investigation into the noise complaint is continuing.
- By law, I can only investigate a complaint made within 12 months of the complainant becoming aware of the issue, unless there are good reasons to exercise discretion in this respect. Mr W became aware of the noise in April 2018 and so on the face of it, the complaint is late. However, as will be explored in this statement, the Council’s response to Mr W’s complaint has been poor and the matter is ongoing. In my view, Mr W has reasonably waited for the Council’s investigation to conclude and so I am exercising my discretion to investigate.
Delay and poor communication
- I have reviewed Mr W’s correspondence to the Council over a number of years, including his initial formal complaint made in September 2018. In most instances, the Council did not respond to Mr W’s correspondence. Further, it failed to respond to and investigate his initial formal complaint. The Council has since acknowledged there have been a number of errors made resulting in failure to acknowledge complaints and a failure to adequately communicate with Mr W.
- There is clear fault by the Council as it has not responded to Mr W with professionalism and reliability. This has meant Mr W has faced great uncertainty over a number of years with respect to how his noise complaint would be handled. I also believe these failings have compounded his anxieties with respect to the alleged noise and left him without any recourse.
- As to the noise complaint, this was first logged in April 2018 and the Council has said its investigation is continuing. I accept the Council’s point that the Covid-19 pandemic meant the bar was not fully operating for 17 months which impacted on its ability to investigate. However, much of the delay took place before the pandemic and the evidence suggests the Council was not responding to Mr W’s concerns and taking proactive action to resolve the matter. In my view, the Council has unreasonably delayed in investigating Mr W’s noise complaint. This has caused Mr W significant distress, made worse by the Council failing to respond to him. I am therefore recommending a financial remedy.
- By law, the Council is under an obligation in law to investigate all noise complaints. The Council first notified Mr W it was starting an investigation in April 2018 and requested that he complete noise logs. On review of the Council’s responses to this investigation, it did not take any material action from June 2018 until the summer of 2021 when it installed noise monitoring equipment. In my view, this means the Council failed to investigate Mr W’s noise complaint for a period of three years, though I do accept the investigation was hindered in light of the Covid-19 pandemic which introduced lockdown restrictions in March 2020. I therefore find the Council was at fault for failing to investigate Mr W’s noise complaint between June 2018 and March 2020.
- The Council has since said it is reviewing the noise recordings from Mr W’s property and has said the outcome of the investigation is pending. For events after March 2020, I cannot add anything further. To make any decision now regarding the adequacy of the Council’s investigation post March 2020 would be to prejudice the outcome of that investigation. However, it is clear the Council must conclude its investigation into Mr W’s noise complaint without any further unreasonable delay.
- Importantly, as the Council has not concluded its investigation, I cannot say a statutory nuisance exists and that Mr W has suffered an injustice by reason of the noise. However, that the Council failed to investigate the issue in the initial stages of the complaint did cause Mr W serious distress and uncertainty. This injustice to Mr W will be considered in my proposed recommendation to the Council.
- By law, the Council is required to advertise and invite consultation to a licence review by placing a sign at the licenced premises and at its own offices. That said, the Council had a policy in 2005 which went beyond the law and required it to write to local residents who had an interest in the review exercise. The Council changed its policy in 2018 removing this additional measure, though failed to update its written policy online. Mr W’s complaint is the Council held a review of the bar’s licence and invited consultation under its 2018 policy without writing to local affected residents to gain their views.
- In my view, the Council was at fault for failing to update its written policy. I must therefore consider whether Mr W was unfairly denied the opportunity to make representations with respect to the review. In my view, the Council still complied with the law with respect to advertising the consultation period. Therefore, although the Council was at fault for not updating its policy, I do not accept Mr W was prevented from making comments with respect to the review.
- The Council has since written to Mr W providing the outcome of the review. Mr W does not have appeal rights to a court because he did not make relevant representations about the original licence variation or review of a licence. In any event, the time period to bring an appeal has now lapsed. Should Mr W have further concerns relating to the bar’s licence and attached conditions, he should contact the Council so that these can be considered further.
- Within one month of a final decision, the Council will take the following actions:
- Provide a written apology to Mr W which acknowledges the faults and injustice identified in this statement.
- Pay Mr W £700 to acknowledge the distress and uncertainty he has suffered over an extended period of time.
- Investigate Mr W’s noise complaint without further unreasonable delay and provide him an update each month until the conclusion of the investigation.
- The Council failed to investigate the existence of a statutory nuisance in the early stages of Mr W’s complaint. It also failed to respond to Mr W’s concerns and maintain contact with him. That said, the outcome of the noise investigation is pending and I cannot add further until the inquiry has been completed. As to the licence review, the Council was at fault for failing to update its policy. However, this did not cause Mr W an injustice since the consultation was still advertised.
Investigator's decision on behalf of the Ombudsman