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North Devon District Council (20 005 183)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 03 Mar 2021

The Ombudsman's final decision:

Summary: The Council was at fault for the severe delay in responding to this complaint, and it has agreed to write a formal letter of apology to complainant for this. However, we cannot find fault on the substantive matters in the complaint, because they are too old or too speculative for the Ombudsman to investigate.

The complaint

  1. I will refer to the complainant as Mrs W.
  2. Mrs W complains about the Council’s handling of her complaint, which was itself about various aspects of a noise nuisance investigation it had undertaken.

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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 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)
  3. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

  1. I reviewed the Council’s correspondence with Mrs W.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. Mrs W owns a property. There is an adjoining business premises, which she uses to run a business. There is also a basement unit beneath the business premises, which has historically been used to host a nightclub.
  2. In 2018, Mrs W complained to the Council the nightclub was causing an intolerable noise nuisance, both to her home and to the business premises. After investigating, the Council served a noise abatement notice on the nightclub operator in October 2018. The notice required the operator to undertake works to prevent noise transfer from the club to the adjoining buildings.
  3. The operator undertook some work, although this was not adequate to address the nuisance. After a further noise incident in January 2019, breaching the abatement notice the Council interviewed the nightclub operator under caution.
  4. Shortly after this, the nightclub closed and the operator moved out. The club premises has remained vacant since then.
  5. In April 2019, Mrs W submitted a complaint to the Council about various aspects of the investigation, including the time it had taken, the efficacy of the abatement notice, and the conduct of the investigating environmental health officer (EHO). The Council acknowledged some shortcomings in its response, but largely did not uphold Mrs W’s complaint. It referred Mrs W to the Ombudsman if she wished to pursue the matter further.
  6. On 10 November 2019, Mrs W emailed the EHO. She said she had found adverts on the internet indicating the new owner of the premises intended to let it out again as a nightclub. Mrs W said the owner’s intention was to “mislead a future tenant” that the premises was suitable for a nightclub. Mrs W complained she had predicted this would happen, and asked the EHO to liaise with the Council’s licensing department to withdraw the current licence and ensure it was not reissued.
  7. After receiving no response, Mrs W submitted a complaint to the Council on 27 November. She added that the “new owner of the building” had obtained an acoustic report which said the premises complied with the British Standard for noise insulation between a restaurant or bar and a bedroom, but was ignoring the difference between a restaurant/bar and a nightclub.
  8. The Council responded on 2 December, and apologised for its failure to acknowledge Mrs W’s original email. It said the EHO had discussed the licensing situation with the relevant team, but it had confirmed a licence could not simply be withdrawn, even with a change in ownership. However, the Council noted the new owner appeared to be taking reasonable steps to address Mrs W’s concerns. The Council asked Mrs W to let it know as soon as possible if any noise nuisance occurred.
  9. Mrs W replied on 3 December. She complained she had not received a personal apology from the EHO or other officers she had sent the original email, for their failure to acknowledge it.
  10. Mrs W reiterated her concern the new owner would let the premises to a new nightclub operator. She acknowledged he had obtained the acoustic report, but this confirmed there was no standard for noise transfer between a nightclub and residential building. Mrs W predicted any new operator would simply ignore the report anyway, and said she would not accept waiting for a new nuisance to occur.
  11. Mrs W also complained:
  • she had previously been told noise was not a factor the Council could take into account when deciding whether to issue a licence, but had now established this was not true;
  • the abatement notice should have been served on the premises owner, not the nightclub operator, because the nuisance was the result of a structural defect in the building;
  • she had been forced to spend money on altering her property because of Council inaction, but the law says, when an abatement notice has not been complied with, the Council can carry out the required work in default and then recoup the money from the responsible party;
  • she had been told there was no mechanism for reviewing a licence, and although she could bring an individual case there was a substantial fee for doing so. However, she had now established the review process was free. Mrs W questioned why the Council could not request a review because of the breach of the abatement notice, and the general unsuitability of the premises; and
  • that a review could also be brought on the basis of a public nuisance. Mrs W referred to a previous complaint she had made about litter and broken glass in the street, caused by the nightclub.
  1. Mrs W approached the Ombudsman on 22 September 2020, because she had not received a response. We accepted her complaint for investigation on 8 December, at which point the Council confirmed it was still intending to respond.
  2. The Council sent its formal response to Mrs W on 3 February. It said:
  • it was not clear which email to the EHO Mrs W was referring to. However, the records showed the EHO had been in regular contact with Mrs W during the nuisance investigation. The Council apologised if an email had been missed, but did not agree its service to Mrs W had been poor;
  • it apologised if she felt the first response had not addressed all her concerns. The Council said it was not possible for it to know the new owner’s intentions, and could not comment on potential noise nuisance as there were no issues at that time. It could not comment on any future licensing for the premises for the same reason;
  • it acknowledged the frustration Mrs W had felt at the length of time it had taken to investigate the nuisance originally. It noted the operators had taken steps to mitigate the noise, but this had been inadequate, and the Council had been working with them to reduce the noise further when the club closed down. There was no current licence for the premises and the previous licence had been suspended at the end of 2018. The Council had not received a new licensing application, and this would be required before a new nightclub could open. It understood Mrs W’s frustration, but the Council could not take pro-active measures against a venue which was empty and closed;
  • it was correct for the abatement notice to be served on the nightclub operator, not the owner, as they were the party responsible for the nuisance. The new owner had not contacted the Council and so it could not comment on his intentions for the premises. The Council noted the owner was aware of the abatement notice, and hoped he would take this into account. The Council would work with both parties if a new noise problem should occur;
  • it could not offer to cover the costs of the work Mrs W had carried out to her own property, as the Council had been carrying out its investigation at the time;
  • although it is possible to transfer a licence, it was not the case a new operator could simply reopen under the existing licence. The prospective operator would either need to pay the outstanding licence fees for the previous three to four years, or apply for a new licence, which would go before the Council’s Licensing Committee if it received any objections. If the operator sought to open under the existing licence, the Council would inform them of the noise problems and work with both parties to resolve them;
  • it acknowledged there had been historic problems with anti-social behaviour in the area, but there was no evidence to link this specifically to the nightclub, and so it could not be used as evidence for a licence review; and
  • it apologised for the delay in providing its response, but reiterated the EHO had worked with Mrs W and the previous operator to resolve the nuisance, and would have continued had the club not closed down. The Council was hopeful it could resolve any potential new noise issue before the club re-opened, if the owner did intend to let it out for this purpose again.

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Legislative background

Statutory nuisances

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
  2. Typical things which may be a statutory nuisance include:
  • noise from premises or vehicles, equipment or machinery in the street
  • smoke from premises
  • smells from industry, trade or business premises
  • artificial light from premises
  • insect infestations from industrial, trade or business premises
  • accumulation of deposits on premises
  1. For the issue to count as a statutory nuisance, it must:
  • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
  • injure health or be likely to injure health.
  1. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
  2. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
  3. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices

  1. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
  2. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
  3. 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.

Venue licensing

  1. The Licensing Act 2003 sets out 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.
  2. The four licensing objectives set out in the Act are:
    • prevention of crime and disorder
    • public safety
    • prevention of public nuisance
    • protection of children from harm
  3. The Council is the body responsible for issuing alcohol licenses and is referred to as the licensing authority. Where an application is properly made and no responsible authority or other person makes representations, the licensing authority must grant the application, subject only to conditions in the Act. Responsible authorities include all the bodies whom the applicant is required to notify.
  4. If representations are made, it is for the licensing authority to decide whether those representations are relevant to the licensing objectives. If the licensing authority decides that any representations are relevant, then it must hold a hearing to consider them.
  5. At a hearing, the licensing authority may:
    • grant the application subject to modifying conditions that are consistent with the operating schedule in a way it considers appropriate for the promotion of the licensing objectives
    • reject one or more requested licensable activities
    • reject the application
    • refuse to specify a person as a designated premises supervisor
  6. All decisions of the licensing authority, and any conditions imposed, must be relevant to the licensing objectives in the Act (see paragraph 9 above).
  7. Where the authority rejects an application, the applicant may appeal to the magistrates’ court. Any rejection must be made by reference to the four objectives. Where the application is granted, with or without conditions, and an objector disagrees with the council’s decision they also have the right to appeal to the magistrates’ court.

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Analysis

  1. I began my investigation of this complaint before the Council had issued its final response of 3 February 2021. At that point, Mrs W said she was seeking to complain only about the Council’s failure to respond to her complaint. She was not seeking to pursue the substantive matters, such as the service of the abatement notice, with the Ombudsman.
  2. The Ombudsman will not normally investigate complaint handling alone. We will generally only look at the handling of someone’s complaint, as part of wider investigation into the substantive matters. This is because poor complaint handling alone, and entirely in isolation from the substance of the complaint, does not represent a significant injustice we would seek to remedy.
  3. However, after receiving the Council’s final response, Mrs W responded to maintain her dissatisfaction with its decision. She copied a member of the Ombudsman’s staff into this email. As Mrs W has now made more of the substantive matters here, I will therefore take the opportunity to discuss these in some more detail.
  4. The law says a person should approach the Ombudsman within 12 months of becoming aware of an issue they wish to complain about. We can disapply this rule, but must first be satisfied (a) there is a good reason for the delay, and (b) it is still possible to carry out a robust investigation.
  5. Mrs W’s complaint rests on her concerns about what the new owner of the premises may do. But this is based on what she considers to be errors in the Council’s handling of the original investigation – in particular, that the abatement notice was served on the nightclub operator, not the owner.
  6. I consider these matters are out of time. The nuisance investigation came to an end in early 2019, more than 18mths before Mrs W approached the Ombudsman. The abatement notice itself was served in October 2018, nearly two years before her complaint to the Ombudsman. And I note, in particular, the Council referred Mrs W to us in April 2019. For this reason, I do not consider there is a good reason for this delay.
  7. I also do not consider we could achieve anything meaningful by investigating these matters now anyway. Mrs W has pointed out an abatement notice should be served on a premises owner, rather than a tenant, where the relevant nuisance is being caused by a structural defect. I understand she considers this to be the case here, because noise was being transmitted through the building’s walls to her property.
  8. But I am not persuaded the simple fact noise was transferring from the club to her property through the walls is evidence there is a defect in the structure. Serving an abatement notice on the operator of a venue, rather than the owner, is the normal process we would expect to see, when the nuisance is being caused by the operator’s activities. I cannot see any obvious evidence of fault in the Council’s decision to do this.
  9. In any event, I note Mrs W has referred to the club having a “new” owner. Even if the Council had served the abatement notice on the original owner, therefore, it appears it would no longer be valid. The new owner would not be the named party in the abatement notice.
  10. So, even if I could find fault with the Council’s decision to serve the notice on the operator, rather than the owner, there is no meaningful remedy I could provide for this. I could not, for example, recommend the Council consider re-serving the original notice on the new owner. And, for the Council to serve a new abatement notice, either on the new owner or a prospective new nightclub operator, it would first need to investigate and identify a new statutory nuisance. It could not pro-actively serve a notice on the assumption the historic nuisance will happen again.
  11. Taking this together, I do not consider I should exercise discretion to investigate this late complaint.
  12. Mrs W has also raised the possibility the Council could use its licensing powers to prevent a new club from opening. However, the Council has explained the previous operator’s licence was suspended in 2018. A prospective new operator could not simply open a new club under the previous licence, and, if they wished to obtain a new licence, it would need to be approved by the Council’s Licensing Committee, to which Mrs W would have the opportunity to make an objection.
  13. Either way, I consider this matter too speculative for the Ombudsman to intervene now. Our role is not to make decisions on the Council’s behalf, but to review decisions the Council has made, to identify and address any possible administrative fault.
  14. I acknowledge, and do not seek to dismiss, Mrs W’s fears about what may happen if a new club opens. But Mrs W’s fears do not alter the fact the club is currently closed, and as yet no prospective new operator has contacted the Council about licensing. The Council will need to make a decision if and when that happens, but I cannot investigate any such decision before it is made. Nor can I say it would be fault for the Council to make a particular decision – again, it is not the Ombudsman’s role to instruct the Council how to use its discretionary powers.
  15. I note also, if Mrs W objects to a new operator’s licensing application, and the Licensing Committee grants it, she will then have the right to appeal this to the magistrates’ court. Where such a right exists, the Ombudsman will generally expect a person to use it, rather than making a complaint to us. This being the case, it is unlikely we would investigate this matter, even if the Council does approve a future licensing application
  16. So there is nothing in Mrs W’s substantive complaint on which I can find fault by the Council. The complaint is either too old or too speculative to bear investigation by the Ombudsman.
  17. However, I will still find fault here because of the severe delay in the Council’s response to Mrs W’s complaint, which took approximately 14 months.
  18. I appreciate the likely impact the Covid-19 pandemic has had on the Council ability to deal with complaints, and this might explain why the delay was so prolonged. But the complaint had already been outstanding for three months before the Government announced the first national lockdown; and so, even at that point, the Council had already exceeded its published four-week target date for a response.
  19. I am aware Mrs W has found this delay extremely frustrating. I therefore consider this fault has caused her an injustice.
  20. I acknowledge the Council apologised for the delay as part of its response letter. While this is positive, I am not persuaded this represents an adequate apology for a delay of such severity. Rather, a separate, formal letter of apology would be more appropriate here. I make a recommendation to this effect.

Agreed action

  1. Within one month of the date of my final decision, the Council has agreed to send Mrs W a separate, formal letter of apology for the severe delay in responding to her complaint.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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