Summary: Mr X complains the Council has not dealt with a noise complaint properly. The Council is at fault because it did not respond to a noise complaint in the right time and did not investigate noise suppression measures. The Council has agreed to assess noise suppression measures.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has not dealt properly with noise complaints because:
• It has not properly investigated noise complaints as it has failed to comply with noise and pollution control enforcement policy, it has failed to accept video EVD when investigation noise nuisance complaints, it has failed to install any noise monitoring equipment, the noise complains service is not open and available during the hours when noise nuisance is at its peak during late afternoon and early evening and it has not provided information setting out how residents should collect noise nuisance evidence.
• It has not taken any enforcement action about noise and licencing complaints because it has not issued a noise abatement notice and has not investigated or undertaken enforcement action in relation to breaches of licence conditions 41 and 59.
• it has not dealt with his complaint properly because it has not acknowledged and/or replied to emails, has no system in place to ensure noise complaints made to a department other than public protection team are referred to the Public protection team; and has not explained why this matter has not been dealt with, offered no apology and has not provided a plan to address this matter going forward.
2. Mr X says he has suffered distress as a result of the noise

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What I have investigated

3. I have investigated that part of Mr X’s complaint about how the Council dealt with noise complaints from July 2019. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

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)
5. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

6. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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

9. I spoke to Mr X and considered the details of his complaint as well as the Council’s response. I reviewed documents sent by the Council and Mr X.
10. 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

Noise complaints

11. The Environmental Protection Act 1990, Section 79(1) states “…it shall be the duty of every local authority to …, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.”

The Council’s policy

12. The Council operates a responsive service at certain hours. When it receives a complaint about noise, the Council will review it and respond via telephone within half an hour. The review will involve conducting background checks to assist in making a decision as to what level of response is required.
13. If the Council attends a property, they will usually have to conduct an assessment from within a habitable room. Habitable rooms include living areas and bedrooms. If it is unable to conduct an assessment as described above, it is unlikely that any action can be taken.
14. If it is satisfied that a nuisance exists in-line with statutory guidance, the normal outcome will involve a legal notice being served, requiring that the nuisance is stopped or restricted. If further nuisance was to occur after the serving a notice and this is witnessed again by officers, it is likely legal proceedings would follow.

What happened

15. Mr X made numerous complaints about noise problems from the beer garden of pub near his home, between 2018 and 2020. The pub submitted a licencing application in 2019, which was decided in February 2020. Mr X and the Council both objected to the licencing application, which was granted.
16. The Council arranged a meeting with the pub owner and local residents and made numerous monitoring visits to the location.

Analysis

Investigating noise complaints

17. In 2019, Mr X provided video evidence to the Council for the benefit of the licencing decision. This material was considered when the licencing decision was taken.
18. The Council’s policy identifies how reports of noise nuisance should be reported and the Council has also sent Mr X copies of diary sheets he should fill in to record incidents of noise disturbance.
19. The Council’s policy identifies how reports of noise nuisance should be reported that it will have to complete an assessment from with a habitable room of a property. The Council says it has not always been able to do this due to COVID-19 safety requirements.
20. Records from the Council show it responded to each report of noise problems from Mr X since August 2019. Attempts to make an assessment of noise were frustrated due to Mr X not being at home and telephone calls to him not being answered.
21. A complaint made by Mr X on 10 July 2020 was not responded to until nearly two weeks later. This is outside of the timescale in the Council’s policy. I consider this to be fault by the Council. This did not cause any injustice to Mr X because the Council made an assessment visit shortly afterwards and then took more proactive action to resolve the issues as set out below.
22. In August 2020, the Council held a meeting with Mr X and the pub. The outcome of the meeting was that:
• The Council would complete additional inspections by the end of September 2020.
• The Council would continue to maintain dialogue with both residents and the venue to seek a solution that balances the need of a business and residents.
• Reports of ASB/ Noise to continue to be reported as the Council will where possible act and provide and audit trail of issues.
• inspections would be carried out at busy times specified by the residents. It was hoped that we could be able to assess from residents’ homes.
• The Council would assess ideas around noise mitigation that would include fencing, planting, and rubber surfaces to try and dampen/ deflect noise.
23. Council records show that inspections were carried out on eleven occasions. The inspections were predominantly carried out on Fridays and Sundays, between 12pm and 9pm. Other than that identified above in paragraph 20, there was no fault by the Council regarding the investigation of Mr X’s noise complaints.

Enforcement action

24. In January 2021, the Council conducted a review of the information available concerning Mr X’s complaints. It considered the history of the licencing and noise investigations from 2018 to the end of 2020.
25. The findings of the review were that, “inspections had been undertaken via the Police, Public Protection and Camera Surveillance Service to provide independent views of inspection outcomes and their findings can be summarised as the following:
• The pub had been fully compliant with its Premises Licence conditions.
• Noise emanating did not constitute a statutory noise nuisance.
• The venue was compliant with COVID regulations.”
26. The Council made a number of recommendations at the end of its review report:
• “Residents should continue to report issues which will be responded to by the Authority.
• meetings between the venue and Resident Representatives should continue as part of a good neighbour initiative after three months of the venue reopening with a view to voicing and seeking resolutions in relation to issues raised by either party.
• A Public Protection Representative should join these meetings if requested by both parties.”
27. Pubs have only just been allowed to re-open recently under the Government’s revised COVID-19 social distancing guidelines. Two meetings, as identified in paragraph 25 above, have been held in May and June, with representatives from the pub and local residents.
28. I have seen minutes of the meetings which show Mr X attended the first meeting and accepted the outcome of the review in paragraph 25. The following issues were discussed at the meetings:
• Noise from the venue;
• The venue’s ability to manage noise;
• The Council’s views on action that could be taken;
• Sound reduction measures and planning issues;
• An assessment by an acoustics expert.
29. The Council has considered all the evidence available to it when determining whether licencing conditions have been breached or whether there is a statutory noise nuisance. This is a merits decision by the Council. This was not fault by the Council.

Complaint handling

30. Mr X says the Council has not investigated other more recent complaints he has made. I have not investigated this further because it is unlikely that I would find fault by the Council, or there would be a different outcome.
31. The Council agreed it would assess noise mitigation measures at a meeting in August 2020. The Council has provided no evidence to show it did this. This was fault by the Council. Mr X has been left uncertain whether there is a practical way to reduce the impact on him of any noise.
32. Mr X’s noise complaint to the Council in July 2020 was not addressed for two weeks, as found in paragraph 20 above. The Councils complaint response highlighted this aspect of his complaint but did not address it. This was fault by the Council. This did not cause any injustice to Mr X because it would not have resulted in a different outcome.
33. Mr X’s formal complaint was received by the Council on 24 July and acknowledged on 31 July. The Council accepts this was outside its corporate target. A complaint response was issued within the necessary timeframe. The Council accepts its final review response to Mr X was also delayed by two weeks. This was fault by the Council. The Council has already apologised to Mr X. This is a suitable remedy.
34. The Council’s review identified findings and recommendations as set out above in paragraphs 24 and 25. This was not fault by the Council. The Council should continue to implement the recommendations in its report.

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Agreed action

35. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within three months of my final decision:
• Assess noise suppression measures that may be effective and discuss them with the pub and Mr X.

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Final decision

36. I have found fault by the Council causing injustice to Mr X. I have now completed my investigation.

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Parts of the complaint that I did not investigate

37. I have not investigated that part of Mr X’s complaint about noise nuisance before July 2019 because this is out of time and I see no valid reason to investigate it.

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Investigator's decision on behalf of the Ombudsman