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Cheshire East Council (20 005 989)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 27 Aug 2021

The Ombudsman's final decision:

Summary: The Ombudsman found fault on Mrs H’s complaint against the Council about it failing to: make representations to a review committee; object to Temporary Events Notices; communicate with her properly; issue a valid Noise Abatement Notice; ensure there were no delays; consider evidence. The agreed action remedies the injustice caused.

The complaint

  1. Mrs H complains the Council failed to:
      1. properly investigate her numerous reports about noise nuisance from a neighbouring wedding/events venue;
      2. exercise its powers to enforce the nuisance under the Environmental Protection Act 1990, from March 2019 onwards;
      3. properly consider evidence provided by her, including noise diaries and expert input from an acoustic specialist;
      4. enforce the venue’s court-imposed licensing conditions from March 2020 onwards; and
      5. communicate properly with her while exercising its environmental health and licensing functions, as above, from March 2019 onwards.
  2. As a result, she claims she cannot sell her house, had to re-mortgage it to finance the money she spent on noise monitoring equipment and expert data analysis, and in addition, her and her family were caused a great deal of stress and anxiety.

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What I have investigated

  1. I considered the Council’s actions from March 2019 and not earlier. The paragraph at the end of this draft decision explains why.
  2. It also explains why we did not investigate any complaint Mrs H may have about the way the Council dealt with licensing for the venue up to the court hearing.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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The Licensing Act 2003

  1. The Council, as licensing authority, must carry out its functions under the Act with a view to promoting certain objectives which includes: the prevention of crime and disorder; public safety; the prevention of public nuisance; the protection of children from harm. (section 4(1) and (2))
  2. A responsible authority, or any other person, may apply for a review of the licence. (section 51(1))
  3. A decision on this application does not take effect until, where the decision is appealed, the appeal is decided. (section 51 (11))
  4. A person commits an offence if he carries on, or attempts to, with a licensable activity other than those authorised or, allows such an activity to be carried on. (section 136)

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The Environmental Protection Act 1990

  1. A statutory nuisance includes noise emitted from the premises so as to be prejudicial to health or a nuisance. It shall be the duty of every local authority to inspect from time to time to detect any statutory nuisance which ought to be dealt with and where a complaint is received, to take such steps as are reasonably practicable to investigate it. (section 79 (1) (g))

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Council enforcement policies

Corporate enforcement policy (October 2019)

  1. The law requires the Council to consider the following principles when carrying out specific regulatory functions:
  • Proportionate: Its activities will reflect the level of risk to the public and will relate to the seriousness of the offence;
  • Accountable: Its activities will be open to public scrutiny;
  • Consistent: Its advice will be robust and reliable;
  • Transparent: Those it regulates will understand what is expected of them and what they can anticipate in return; and
  • Targeted: It will focus resources on higher risk enterprises and activities.
  1. When deciding whether to prosecute, it will have regard to The Code for Crown Prosecutors issued by the Director of Public Prosecutions.
  2. The primary function of enforcement, for example, is to get regulatory compliance to protect the public, and the environment. It will work with residents and business to provide practical and proactive help and advice to all parties to help them achieve compliance.

Service Specific Enforcement Policy: Regulatory Services and Health (November 2019)

  1. While there are many actions the Council must do, there are also many others which it may do only if it wishes to do so.
  2. Officers can consider informal action, rather than taking enforcement action, as an initial remedy.
  3. Due to the complexity of some work, it is possible for investigations to take a considerable amount of time to allow a thorough investigation.

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How I considered this complaint

  1. I considered all the information provided by Mrs H, and the Council’s response to our enquiries, a copy of which I sent to her. I could not send a complete copy of all the documents I received. This is because they contained information about third parties which needs to remain confidential. I sent a copy of my draft decision to Mrs H and the Council. I considered their responses.

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What I found

  1. Mrs H has lived in her home with her family for more than 10 years. It shares a party wall with a function room in the neighbouring building (the venue). A party wall includes a wall straddling a boundary between 2 properties or one which divides them and forms the structure of both, for example.
  2. Problems started when the venue obtained a Premises Licence. This is a permanent licence allowing the holder to carry out certain activities, including the sale of alcohol, late-night refreshment, and the provision of certain entertainment, such as plays, music, and dancing, for example. For smaller one-off events, a Temporary Event Notice (TEN) may be needed. This is a notice the venue gives the Council for the temporary carrying out of these activities.
  3. Despite making many reports about noise nuisance, Mrs H says the Council wrongly decided there was no statutory nuisance. She also reported antisocial behaviour from the venue as well. She gives an example of the Council failing to respond to a noise report she sent in March last year. She believes the noise nuisance could have been dealt with years earlier had the Environmental Protection Team (EPT) properly investigated her reports and taken enforcement action.
  4. In 2019, there was a Premises Licence Review by the Licensing Sub-Committee which decided the noise levels needed setting at an acceptable volume.
  5. Towards the end of year, Mrs H says the Council issued a Noise Abatement Notice but, this was defective as it did not name the correct party. She took her own legal proceedings at court about the venue’s licence which decided to impose conditions restricting its use under the Licensing Act 2003.
  6. In response to my enquiries, the Council explained the main problem with its investigation was the sporadic nature of the noise from the venue. To help target visits, and install noise monitoring equipment, officers needed, and asked for, a list of booked functions from the venue.
  7. Before I consider Mrs H’s complaints, it is important to separate out the following Council roles:
  • Licensing team: The team carries out enforcement duties for licensed premises, for example. The team enforces licenses, and attached conditions, issued by the Council. A nuisance under The Licensing Act 2003 is not the same as a statutory nuisance the EPT might find under the Environmental Protection Act 1990, for example. The Act 2003 does not define public nuisance and the Council has a wide discretion about what it amounts to.

The government’s ‘Revised Guidance issued under Section 182 of the Licensing Act 2003 (April 2018)’ states public nuisance keeps its broad common law meaning. It may arise though the adverse effects of artificial light, dust, and odour, for example. (paragraph 2.16)

In the Attorney General v PYA Quarries Ltd (1957) 2 QB 169, the courts held:

“..a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.”

  • Environmental protection team: The team investigates reports of nuisance from noise, light, smoke, odour, flies, and dust. Officers decide whether there is evidence of a statutory nuisance under the Environmental Protection Act 1990.
  1. I now consider Mrs H’s complaints:

Complaints a)-d): The Council’s investigation

  1. Mrs H is unhappy with the way the Council responded, or failed to respond, to her reports about noise nuisance from the venue. She argues the failures meant she and her family suffered for longer than they should with noise.
  2. The following are key events:

2019

  • March: Mrs H reported the venue for noise nuisance but claims the Council failed to respond and ignored a request for a meeting. The venue failed to send them notices of events as required. The Council responded to her email, and one sent by her acoustic expert. It explained the previous noise report was closed in 2016. It also explained Mrs H could take her own action against the venue either by way of a premises licence review or private action under the Environmental Protection Act 1990. If they wanted EPT to investigate, they needed to let officers know and send diary logs.

The Premises Licence Review (the Review) sub-committee (the committee) decided there was evidence of a nuisance and imposed 31 conditions on the licence. This included requiring the venue to agree noise levels with EPT and to adopt a policy to prevent antisocial behaviour. The venue had to install an in-house sound system with a compressor limiter device set at an agreed level with EPT. The limiter monitors sound levels. If they go beyond a preset limit, it cuts the power to the outlets where the music system is plugged in.

In response to her complaint, the Council accepted the EPT was wrong not to have made representations at the committee, for which it apologised.

  • April: EPT replied saying as they failed to register their noise report, it could not help. It noted their last noise complaint was in 2016 which was closed following no further reports. Council officers needed to witness the nuisance. An officer explained ongoing problems would be dealt with by pre-arranged visits or, by officers visiting if able during working office hours.

Mrs H appealed the committee decision against some of the conditions it imposed. Her acoustics expert asked about progress with the limiter but, EPT said it was not involved as this was for the licensing team.

  • May: Mrs H returned completed diary logs. EPT wrote to her saying it would start an investigation. An officer met with the venue who made certain proposals to resolve the problem and about receiving noise reports. The officer updated Mrs H. An email to the venue confirmed what noise mitigation improvements were done but, also what needed doing, including the fitting of the limiter. The venue pointed out the licensing conditions referred to were under review and argued only the original conditions applied.
  • June: The Council received reports of noise nuisance from other residents and Mrs H throughout this month. EPT wrote to the venue about these reports and asked the venue about progress on works to the shared party wall and the limiter. It also made recommendations to protect residents from noise. The Council asked Mrs H to continue to send diary logs and it would arrange to install noise monitoring equipment when it became available.
  • July: Mrs H confirmed she would welcome noise monitoring equipment and made a further report of noise.
  • August: Mrs H reported noise nuisance over the previous weekend. Noise monitoring equipment was installed. The recordings suggested a statutory nuisance and EPT decided to issue an Abatement Notice. EPT told Mrs H its investigation continued and required no further diary logs from her at that time.
  • September: The Council received completed diary logs from a resident. The venue withdrew a TEN for an event for the following month following concerns raised by EPT. It later resubmitted it. EPT served a Noise Abatement Notice on the venue but, this was defective although the venue agreed to implement measures anyway.
  • October: Mrs H emailed the Council about 3 nights of repeated noise nuisance. She raised concerns about light pollution to their property from lights strung outside the venue. The Council also received reports from other residents. Licensing started an investigation because live music played beyond 11pm. In correspondence, the venue explained what works it would do and once done, would then discuss the limiter as it thought it sensible to complete the works first. The Council withdrew the Noise Abatement Notice.
  • November: Mrs H emailed to report a noise problem. Officers asked for further information and offered to install monitoring equipment. Another resident reported noise problems to the Council.
  • December: Mrs H refused the monitoring equipment because there were no events scheduled for the venue until February 2020. She asked the Council to get a calendar of events to allow targeted noise monitoring, but it was unable to do so. Mrs H reported further noise and sent a log. In response to my draft of this decision, she pointed out some of the events marketed by the venue which caused problems were, by their nature, seasonal and carried out over spring and summer, not the winter months.

2020

  • January: Mrs H sent diary logs and noted the live band in the venue on one occasion was next to the party wall. The licensing team advised Mrs H the information she provided in her logs showed the venue closing before the time allowed under the licence. This meant there was no breach of the licence. Another resident contacted the Council about concerns of increased capacity at the venue advertised.
  • February: The Council unsuccessfully tried to set a noise limiter at agreed levels. The venue wrote to the Council about works carried out which it would complete that week. It also wanted to agree a visit to agree the level on the limiter. A visit was arranged. There were discussions about Mrs H’s expert visiting the venue to carry out noise tests. Her solicitor also confirmed it significant the venue confirmed the works done will ensure no noise escapes.

Licensing started action about TENs for 3 events and unauthorised activities that took place in October 2019.

  • March: At the start of the month, a resident reported noise from the venue. Later that month, Mrs H also made a report claiming an event in a different part of the venue meant it avoided the limiter installed.

The licensing team contacted her and said it completed its investigations. It sent a file to the manager which would then go to the legal team.

The magistrates court heard her appeal against the committee’s decision. The court decided there was a significant problem of noise transmission through the party wall which caused Mrs H and her family distress. The court heard from other residents who experienced problems both of noise and antisocial behaviour. It noted the need for a condition to promote the prevention of public nuisance, which would be wider than just to Mrs H. It decided this test was met and imposed conditions restricting the use of the venue.

The court also noted incidents of antisocial behaviour recorded by Mrs H. Having considered the evidence, the court decided Mrs H had become over-sensitive to such acts, very likely due to her frustration over the lack of action over many years about noise. The court noted there were very few incidents of urination and bad language. It decided incidents of people talking, laughing, children playing in the middle of an afternoon, were unreasonable reports and suggested over-sensitivity. The court also took account of the venue’s lack of sensitivity towards Mrs H but, decided the licensable activities did not cause antisocial behaviour of a nature, or degree, requiring additional measures.

Later the same month, the venue held another event in a room which has no sound insulation. When she reported this to the Council, she heard nothing from the EPT or its Licensing team.

Further emails were not responded to until the end of the month. By this time, the Covid-19 restrictions meant the venue could no longer hold events. The Council said the venue was closed for the foreseeable future.

  • April: Mrs H complained about the venue breaching its licensing conditions towards the end of March and the day after the court decision. Again, they received no prior notification, and the website had no details about who to complain to. She acknowledged the venue had a ‘12-week lead in period’ to carry out the additional work but, complained it breached many conditions of the licence. The venue wanted this period to begin when it could restart business. The licensing team contacted her to say it had enough evidence and had passed the case to the legal team to see if it was enough to take prosecution proceedings about the breaches of the TENs.
  • May: The Council had to decide what impact the Covid-19 restrictions might have on this lead-in period. As the court ordered the 12-week period, the Council decided it could not just change it.
  • June: The licensing team received confirmation from the legal team that it was no longer in the public interest to continue proceedings against the venue for the October 2019 TENs breaches. This was mainly because of Covid-19 restrictions and the amount of time that had passed from when the alleged offences took place.
  • July: The venue gave the Council an update of all the works it had done to comply with the court order.
  • September: An officer from licensing met with the venue to inspect for condition compliance and to monitor. This found several areas still need compliance. The venue inserted a residents’ portal on its website for notices of events.
  • November: There followed correspondence between the venue and Mrs H’s solicitors about the works to the party wall it had to, and could do, under the court order. The Council asked for an update about the sound system/limiter.
  • December: Licensing officers visited the venue to consider a further issue for compliance.

2021

  • January: The venue told the Council it agreed the inhouse sound system and was almost ready for it to agree a set level for the limiter.
  • March: The Council told Mrs H the venue had an inhouse sound system installed but a date would be arranged to set it along with the noise limiter. It explained no further action was taken by it because of Covid-19 restrictions and no events at the venue had occurred.
  1. The Council accepted:
  • EPT should have served objection notices to all TENs submitted by the venue for which it apologised.
  • It communicated poorly with her. Reports were transferred between officers in EPT, which must have been frustrating for Mrs H. Officers did not always respond promptly, or at all, to her contact for which it apologised. It would review communication procedures to ensure responses are sent and those making reports are kept informed about progress.

Analysis

  1. It is not my role to decide whether the evidence Mrs H supplied the Council, and the evidence it obtained, amounts to a statutory nuisance. This is because this decision is for EPT officers to make. Similarly, it is not for me to judge whether the venue breached licence conditions.
  2. The role of the EPT on licensing cases involves making representations on applications based on noise. This is connected to the licensing objectives of preventing public nuisance. They can ask for the attachment of suitable conditions to licences. It can also ask for reviews of licences on this ground too.
  3. I make the following findings:
      1. The Council accepts EPT should have made representations to the committee in March 2019. It apologised and said it reviewed procedures. In future, it will make representations and attend future reviews where there are complaints. Considering the history of the site, and given Mrs H’s initiation of this process, I agree and find this was fault.

I consider this caused Mrs H an injustice. She has the uncertainty of not knowing whether the outcome of the review would have differed had EPT made representations.

      1. The Council also accepts EPT should have served objection notices to all TENs from the venue. The Council apologised for this failure. The failure amounts to fault.

I consider this caused Mrs H an injustice as she again has the uncertainty of not knowing whether the outcome would have differed had the Council served objections.

      1. The Council accepted her complaint of poor communication. The failure amounts to fault. The Council apologised for this and asked the EPT leader to review communication protocols to ensure this failure is not repeated in the future.

I am satisfied this caused Mrs H an injustice. She lost confidence in the Council and experienced frustration and inconvenience chasing officers.

      1. I am satisfied the Council acted on reports received between April and August 2019. During this period, officers took informal action which involved visiting the venue, corresponding with the owners, and querying progress of required works. Officers also installed noise monitoring equipment in Mrs H’s home.
      2. The results of the monitoring meant the Council found evidence of a statutory nuisance. EPT issued a Noise Abatement Notice in September 2019 but, this was defective as it issued it against the incorrect party. It meant the Council had to withdraw it. I consider this error amounts to fault.

I am satisfied this failure caused Mrs H an injustice. She again has the uncertainty of not knowing what might have happened with the situation had it been valid. This was a lost opportunity. It also meant taking further proceedings would mean the Council gathering fresh evidence of a statutory nuisance to rely on as it could not use the evidence it already submitted. This caused her stress and frustration.

      1. In October, Mrs H made reports about 3 nights of disturbance from the venue. The evidence shows the licensing team took some substantive action in February 2020, about 4 months later. In the absence of evidence showing what the team did during this period, I consider the delay amounts to fault.

I am satisfied this caused Mrs H an injustice. She again has the uncertainty of not knowing whether the eventual outcome on these reports would have differed but for the delay. This is another lost opportunity. This is because due to the introduction of Covid-19 restrictions, the Council decided not to pursue any further action against the venue for these breaches.

      1. In January 2020, Mrs H made further reports of noise nuisance but, I have seen nothing to show what EPT did in response. I consider this is fault.

The injustice it caused is uncertainty and the lost opportunity of not knowing what might have happened had the Council acted.

      1. From March 2020, the country introduced national restrictions because of Covid-19. During the remainder of the year, the Council was in contact with Mrs H and the venue operator about works done and works that still needed doing. An agreement appeared to have been reached about the setting of the limiter. The inhouse sound system, chosen in 2021, meant setting the limiter on completion of certain works.

Complaint e): Communication

  1. Mrs H gives examples of poor communication with the Council.

Analysis

  1. The Council accepted fault on this complaint as noted above.

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Agreed action

  1. I considered our guidance on remedies.
  2. I also took account of the Council telling Mrs H about her right to take legal proceedings under section 82 of the Environmental Protection Act 1990 against the venue for statutory nuisance.
  3. I also took account of the fact the venue was closed and could not hold any events at all for a substantial period because of national restrictions.
  4. The Council agreed to carry out the following action within 4 weeks of the final decision on this complaint:
      1. Send Mrs H a written apology for its failures to: issue a valid Noise Abatement Notice; promptly progress action on breaches of the licence; respond to her reports made in January 2021.
      2. Pay £450 to Mrs H for the distress the identified fault caused.
      3. Review its practices to ensure: EPT will make objections to future TENs from the venue where appropriate; proper checks are made about the relevant party to be named on the Noise Abatement Notice; officers act on accepted breaches of licence and progress them without delay; ensure reports received by EPT are acknowledged and actioned.
      4. Make sure the Council keeps Mrs H regularly updated of key progress on compliance by the venue with the licence conditions.

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Final decision

  1. I found fault on Mrs H’s complaint against the Council. The agreed action, and the action already taken by the Council, remedies the injustice caused.

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Parts of the complaint that I did not investigate

  1. I did not investigate any complaint Mrs H might have about the Council’s actions that:
  • took place before March 2019: This is because normally we would only investigate the Council’s actions from October 2019 as Mrs H complained to us in October 2020 and any earlier actions would be a late complaint. A colleague exercised discretion to investigate from March 2019 because it was around this time EPT became involved again.
  • Involve licensing actions that:
      1. were considered in court in March 2020. Matters considered by the courts are not within our jurisdiction. I will not investigate any action of the licensing team taking place before March 2020 for this reason. Matters the court considered during the appeal included: the committee decision being wrong; the frequency of events allowed each year; and
      2. could have been considered at court which included: failure of Council evidence to include Mrs H’s reports from neighbours about problems with the venue as this was a matter she could have raised at court; the resulting delay because of the adjournment of court proceedings; the cost of court proceedings, as this was for the courts to consider.

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      Investigator's decision on behalf of the Ombudsman

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