Summary: Miss C says the Council failed to take action to prevent a local pub from making noise and causing a nuisance. She says this caused her injustice because her sleep and peace were disturbed. The Ombudsman has discontinued its investigation because we could not achieve the result Miss C wants.

The complaint

1. The complainant, who I have called Miss C, says the Council failed to take her complaints about noise from a local pub seriously. She says that, because of this, the pub continues to cause noise. She says the Council:
1. has not taken adequate action to address noise and nuisance from the pub.
2. has intimated that she is making false allegations.
3. passed her allegations between departments, treating her unfairly.
4. allowed the pub to play live music when the country was in lockdown.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• It is unlikely we would find fault, or
• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I considered information provided by Miss C and the Council.
6. Miss C 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

What should happen

7. 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
8. If the Council decides 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 can result in prosecution and fines.
9. 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.
10. 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 and when and where it happens. Noise must be sufficient to cause a nuisance to a normally sensitive member of the public.

What happened

Background

11. Miss C lives in a property near a pub in the Council’s area. When she bought her property, the pub was unoccupied. The pub reopened approximately three years ago. Miss C says that, since then, she has contacted the Council frequently to complain about noise caused by music and rowdy behaviour by pub patrons.

Covid

12. The government required all public houses in England to close in April 2020 because of the COVID-19 pandemic. On 19 July 2020, the government allowed pubs to reopen.
13. In October 2020, the government announced a new three tier system. The entire country was placed in one of these tiers. The Council’s area was initially placed in Tier 1. This meant that pubs and other hospitality venues could open as usual providing they provided table service.
14. It was initially intended that this would be a temporary measure and that pubs would reopen fully on 2 December 2020. However, as it happened, infection numbers soared and the city was placed first in ‘Tier 1.5’ and then, on 2 December, in Tier 3. This meant that pubs were required to close down again and could only offer a takeaway service.
15. In early November 2020, Miss C saw a flier for a fireworks night at the pub. She complained to the Council. The Council told her that the event would be illegal because the pub had not applied for a licence. However, the pub later applied for a licence before the event. The application was granted.
16. Miss C wrote to the Council to protest the fact that the licence was granted. She says the event caused a disturbance. Fireworks were set off in the street and someone urinated on her steps.
17. Miss C wrote to the Council again. She said she had been disturbed by the news and said she feared matters would get worse in December.
18. Miss C wrote to the Council again a week later saying she believed the pub was not covid secure. She said the pub should not be able to play music when other pubs and bars could not. She said the Council had previously refused to take her concerns seriously.
19. She also said she had considered applying to have the pub’s licence revoked but had discovered that she would have to write to the publican and was not prepared to do so as this would put her at risk.
20. The Council responded on 30 November 2020. It said it would continue to monitor the pub to ensure it complied with covid restrictions but said, as the city was entering Tier 3 on 2 December, the pub would close except for takeaways.
21. Miss C was not happy with this response and escalated her complaint to stage two saying the Council had failed to answer her concerns about:
1. Noise.
2. Nuisance.
3. Who would deal with her licensing concerns.
4. The lack of any response from trading standards.
5. What would happen when the pub reopened. She said the Council had failed to react in a timely fashion so, when officers did come, there was no disturbance to hear.
22. The Council responded on 4 February 2021. It said:
1. Noise: The noise nuisance sheets that Miss C had presented before had not showed a persistent nuisance so the Council would not act. There had been no complaints from other residents.
2. Nuisance: Miss C should continue to report instances of nuisance to the Council which would continue to investigate them.
3. Licensing matters: Information about applying to revoke a license could be found on the Council’s website.
4. Trading Standards: Because the complaint was about noise, Trading Standards forwarded the complaint to the Neighbourhood Enforcement Team.
5. After pub reopened: Miss C should continue to fill in noise diaries using a recording app or equipment in her home.
23. The complaint was not upheld. The Council said it had followed the correct procedures and, without sufficient evidence, could not take any action. The Council referred Miss C to the Ombudsman.

My findings

Failure to take action to address noise from the pub

24. Miss C says the Council was at fault for a failure to control noise from the pub. However, a council cannot require a pub to make less noise without evidence that it has caused a noise nuisance.
25. The evidence I have seen shows the Council investigated Miss C’s allegations. It encouraged her to present diary sheets. It decided her evidence did not show there was a persistent nuisance. Mrs C lives some distance from the pub and several are closer to it than she is but The Council received no other complaints. The Council says there is insufficient evidence to take further action.
26. Miss C says she fears the pub will make more noise in future. This is speculative and, given the absence of evidence, the Council has no power to act to control the pub. The Council has said it will investigate any further allegations of noise nuisance Mrs C makes.
27. Miss C has asked the Council to buy her property allowing her to move. There is no requirement for a council to do this and therefore no possibility that we could find the Council at fault for a refusal to do so.

Claim that Miss C is making false allegations.

28. I have seen no suggestion that the Council has made any such claim. The fact that Miss C sincerely believes there is a noise nuisance does not oblige the Council to agree with her. Council environmental health departments, particularly in built-up areas, must make difficult, professional judgments every day as to what does and does not constitute a noise nuisance. They must balance the interests of the entire community and cannot uphold every complaint.

Passing allegations between departments

29. Miss C is concerned that the Council passed her allegations between departments. However, it says it did this because Miss C complained about noise to the Council’s Trading Standards team. This was not a matter for trading standards but for environmental health. There is no possibility that I would find the Council at fault for this decision. She also complained to the Licensing Department which has its own rules established by national law which the Council must follow.

Allowed live music during lockdown

30. Miss C says the pub played loud music while it was banned. The evidence suggests Miss C mistakenly believed there was a ban on amplified music during the lockdowns when, in fact, there was a ban on live music.
31. In any event, the lockdowns have now ended so there is no possibility of recommending a remedy that Miss C wants.
32. For these reasons, I have decided to use the Ombudsman’s discretion to close our investigation.

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Final decision

33. Having considered Miss C’s comments, I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman