Summary: Mr X complained the Council failed to prevent the noise nuisance caused by the pub next door to his property. Mr X also complained the Council failed to take suitable enforcement action in response to the pub installing unauthorised structures in the pub garden. Mr X also complained about the merits of the Council’s decision not to install double-yellow lines in the village. The Ombudsman does not find fault with the actions or decisions of the Council. Despite no fault, the Ombudsman recommended the Council installed noise monitoring equipment into Mr X’s property given the ongoing nature of his complaint. The Council accepted this recommendation.

The complaint

1. Mr X complained the Council failed to prevent the noise nuisance caused by the pub next door to his property.
2. Mr X also complained the Council failed to take suitable action in response to the pub installing marquees and other unauthorised structures in the pub garden in contravention of planning approval.
3. Mr X complained about the merits of the Council’s decision not to install double-yellow lines in the village since it completed the site visit during the Covid-19 Pandemic lockdown when the pub was closed.
4. Mr X also complained about the Council changing to license for the pub.

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What I have investigated

5. I have investigated Mr X’s complaints about the Council’s actions about noise nuisance, contraventions of planning approval and installation of double yellow lines.
6. I have not investigated Mr X’s complaint about the Council changing the license for the pub. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

7. 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)
8. 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)
9. We cannot question whether an organisation’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)
10. If we are satisfied with an organisation’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

11. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
12. Mr X and the Council provided comments on my draft decision. I considered their comments before making my final decision.

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What I found

Statutory noise nuisance

13. The Environmental Protection Act 1990 (EPA) places a duty on councils to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other property
• Injure health or be likely to injure health
14. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
15. The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must act to stop it. The Council must issue an abatement notice if it is satisfied that a statutory nuisance exists.
16. If a person breaks an abatement notice they will be guilty of an offence. A person committing an offence is liable to a fine on conviction by a Court.

Council noise nuisance policy

17. The Council’s policy for handling noise nuisance outlines the action it will take when a person complains about noise nuisance.
18. The Council may ask a person to keep a written log that records the details of the noise nuisance experienced through log sheets for at least two weeks.
19. On receipt of the log sheets the Council Officer will make an assessment of the noise nuisance and decide the next steps. This can include closure of the complaint, referral the Out of Hours Noise Service (if the noise complained about is outside normal working hours), installation of noise monitoring equipment or monitoring of the site.
20. If the Council receives a call to its Out of Hours Noise Service, it will try to attend to witness the noise nuisance. The Out of Hours Noise Service operates from 6pm to 3am on Friday and Saturday and from 3pm till midnight on Sunday.
21. If the Council establishes that a statutory noise nuisance exists it will issue an abatement notice. However, the Council can decide to issues a seven-day deferred abatement notice to attempt to bring about discussions to resolve the noise issue with the perpetrator.
22. If statutory noise nuisance continues after issuing an Abatement Notice the Council make take further action including warning letters, cautions or prosecution against the person responsible for the noise.

Planning and enforcement

23. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
24. Councils can take enforcement action if they find a developer has breached planning rules. However councils do not have to take enforcement action just because there has been a breach of planning control.
25. Government guidance says:
26. “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)
27. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
28. Planning Officers have a power granted by statute to enter onto an application site to assess a planning application. They may visit land outside the application site if invited to do so by the land owner. The decision on whether to do so is a matter for the Officer’s discretion.

Council enforcement policy

29. The Council has a statutory duty to investigate breaches of planning control and conditions attached to planning consents.
30. The Council’s enforcement policy says it will acknowledge a complaint on receipt within three working days. The Council will then investigate the facts and planning history and complete a site inspection within the next 10 working days and then produce a report setting out its findings and recommendations. The Council says it will advise both parties subject to a complaint about the result within 28 working days of receipt of the complaint.
31. The Council says any enforcement activity on the back of its investigations is discretionary and it can decide that no action is necessary even if it finds a breach of planning controls or conditions. The Council says it will only take enforcement action where a breach of planning control unacceptably affects public amenity.
32. The Council’s policy says it will first seek to reach a negotiated outcome to overcome breaches of planning control. If negotiation is unsuccessful the Council will consider inviting a person to submit a retrospective planning application to bring a breach in line. Should a planning application not be submitted in a reasonable period, the Council can consider serving an enforcement notice.
33. When the Council issues an enforcement notice it will detail the steps a person needs to take to remedy a breach of planning control.

Noise nuisance

What happened

34. On 4 July 2020, Mr X complained to the Council about noise from the pub next door to his property. Mr X said the pub was holding repeated outdoor events causing much noise. The Council responded to Mr X to advise there was no limit to the number of events the pub could hold provided the noise did not cause a statutory noise nuisance. The Council directed Mr X to its Out of Hours noise team without requiring noise log sheets.
35. Mr X complained to the Out of Hours noise team on 30 August 2020. A Council officer attended and witnessed a statutory noise nuisance. On 2 September 2020, the Council issued a deferred abatement notice to the pub about excessive outside music.
36. The pub contacted the Council on 6 September 2020 and advised the Council it had cancelled all outside events with music following receipt of the deferred abatement notice. The Council decided not to issue a full abatement notice because of the pub owner’s response.
37. Mr X complained to the Out of Hours noise team again on 25 October 2020. A Council officer attended on this date. The officer noted they could hear music but not at a level that would form a statutory noise nuisance.
38. Mr X did not contact the Council about noise nuisance again until June 2021. Mr X complained to the Out of Hours noise team on both 12 June 2021 and 13 June 2021. On both occasions Mr X asked the Council officer not to attend when the officer called back.
39. Mr X complained to the Out of Hours noise team on 3 July 2021 and 1 August 2021. On both occasions the Council officer witnessed noise but did not consider it a statutory noise nuisance.
40. The pub contacted the Council to advise of an event it was holding on 28 and 29 August 2021. On both these dates, Mr X contacted the Council’s Out of Hours noise team who attended and witnessed hearing the music inside Mr X’s property.
41. The Council wrote to Mr X on 1 September 2021 following the visits on 28 and 29 August 2021. The Council said the pub made it aware of the planned events. The Council said when it considers if a statutory noise nuisance exists it must consider the frequency and locality of noise. The Council said occasional planned large-scale events are not unreasonable to expect from a pub causing increased noise. The Council said the officers stayed on both nights and noted the noise noticeably reduced after 9.45pm. The Council asked Mr X to provide log sheets of noise nuisance so it could get a clearer picture about recurrence of events.
42. Mr X provided the log sheets to the Council on 7 October 2021 before making a further complaint to the Out of House noise team on 28 November 2021. The Council Officer attended and noted the nature of the language from a comedian on a microphone was offensive and intrusive. The Council officer provided feedback about the event and the Council decided to issue a Community Protection Warning to the pub for antisocial behaviour. The Council issued this warning on 16 December 2021.
43. Mr X complained to the Out of Hours noise team on 31 December 2021, 2 January 2022 and 12 February 2022. The Council officer’s either did not witness a statutory noise nuisance or could not attend Mr X’s property because of a Covid-19 related infection.
44. On 17 February 2022, the Council contacted Mr X to discuss his complaints. Mr X said he had concerns the doorman for the pub was tipping off the pub to turn the music down when they saw the Out of Hours noise team officers. The Council noted Mr X’s concerns on its system.
45. Mr X complained to the Out of Hours noise team on 25 February 2022. The Council completed a noise assessment before approaching Mr X’s property and did not find a statutory noise nuisance. The Council officer noticed that when he approached Mr X’s property the noise reduced from the pub. The Council officer continued to monitor the pub but only witnessed low level noise.

Analysis

46. Mr X complained the Council failed to prevent the noise nuisance caused by the pub next door to his property.
47. Mr X made his first contact with the Council about noise nuisance on 4 July 2020. The Council could have asked Mr X to provide noise log sheets of the noise nuisance first. However, the Council decided to bypass this step and put Mr X in contact with the Out of Hours noise team.
48. The Council has discretion to bypass the provision of log sheets as outlined in its policy. Doing so for Mr X moved him faster along the Council’s process and was a benefit to him.
49. The Council attended Mr X’s first contact with the Out of Hours noise team and witnessed a statutory noise nuisance. The Council issued a deferred abatement notice in response to this witnessing of a first statutory noise nuisance. The Council has acted in line with is policy by issuing a deferred abatement notice and I do not find fault.
50. In response to the deferred abatement notice, the pub owner engaged with the Council and cancelled live music events. The Council decided this response by the pub owner was satisfactory. The Council was entitled to make this decision and I do not find fault.
51. Since issuing of the deferred abatement notice, the Out of Hours noise team has attended Mr X’s property on ten occasions and have not witnessed a statutory noise nuisance on any visit. Since the Council could not prove a statutory noise nuisance it could not take any formal enforcement action against the pub.
52. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])
53. Since the Out of Hours team have attended Mr X’s property in response to reports of noise nuisance and found no statutory noise nuisance, the Ombudsman cannot question the decision of the professional officers.
54. While the Council found no statutory noise nuisance, the Council did issue a Community Protection Warning in response to the live comedian act as it considered this met the threshold for antisocial behaviour. The Council acted suitably in response to the Council Officer’s report on this instance and supports the professional nature of the officers attending.
55. The Council has, in general, taken suitable steps to respond to Mr X’s complaint and adhered to its process. The Ombudsman cannot find fault with the Council for not stopping noise when it cannot find a statutory noise nuisance.
56. While the Council has attended the property often and is responsive to Mr X’s concerns, the Council has not offered installation of noise monitoring equipment to Mr X. The Council is not under any duty to offer noise monitoring equipment but says it can offer this as part of its policy. While I do not find fault with the actions of the Council, I consider the Council should offer installation of noise monitoring equipment. This is because Mr X is continuing to report noise nuisance to the Council and this could assist the Council in its investigations.

Enforcement

What happened

57. On 22 August 2020, Mr X submitted a complaint to the Council about a breach of planning control. Mr X said the pub next to his property installed two large marquees and a toilet block without planning permission. The Council accepted Mr X’s complaint on 27 August 2020.
58. The Council wrote to Mr X on 1 September 2020 to confirm it had logged an enforcement case about Mr X’s concerns. The Council said it would complete a site visit in the next 10 working days.
59. The Council completed a visit to the pub on 9 September 2020. During the site visit the Council noted construction of the two marquees, a stage and a toilet block.
60. The Council wrote to the owner of the pub on 14 October 2020 to advise the marquees, stage and toilet block needed planning permission. The Council said the owner of the pub needed to complete one of the following three actions within 28 days of the letter:
• Make a retrospective planning permission.
• Remove the unauthorised structures.
• Provide an explanation to the Council why they disagree with its findings.
61. The Council also provided Mr X with an update on 14 October 2020.
62. Since the pub owner did not follow the above three options, the Council issued a Planning Contravention Notice encouraging the pub to submit a retrospective planning application.
63. The pub engaged with the Council and submitted a retrospective planning application on 5 March 2021. The Council kept contact with the pub owner and completed further site visits as part of the planning application.
64. On 28 June 2021, the Council refused the pub owner’s retrospective planning application.
65. The Council wrote to the pub owner asking they remove the unauthorised structures by 29 September 2021. The Council told Mr X about the pub owner’s deadline August 2021.
66. The Council completed a site visit on 24 September 2021 and confirmed the unauthorised structures remained in place. The pub owner told the Council officer they had lodged an appeal against the refusal of the retrospective planning application on 23 September 2021. The Council placed the matter on hold subject to the outcome of the appeal.
67. The Council did not receive the appeal so entered into discussions with the pub owner in November 2021. The Council sent the pub owner an Enforcement Notice requiring the pub to remove the toilet block and stage within three months from 7 January 2022. The Council outlined the pub owner’s appeal rights to the planning application.
68. The pub owner submitted the planning application appeal on 23 December 2021.
69. The Council’s enforcement team requested the pub owner provided further information about the two marquees on 7 January 2022. The pub owner provided the requested information.
70. The Council confirmed it had received the appeal from the pub owner on 24 January 2022. The Council said it had accepted the appeal about the planning application and would place enforcement action on hold until it decided the appeal.
71. The Council completed a site visit on 10 March 2022 and noted the current situation with the site remained similar to previous visits. The Council noted that it was waiting on a decision over the planning application appeal before proceeding with further enforcement.

Analysis

72. Mr X complained the Council failed to take suitable action in response to the pub installing marquees and other unauthorised structures in the pub garden in contravention of planning approval.
73. The Council has a duty to investigate breaches of planning permissions reported to it.
74. The Council opened an investigation into Mr X’s concerns following Mr X raising the matter with it. The Council acted in line with its policy in registering Mr X’s concerns and acknowledging this with Mr X, I do not find fault.
75. The Council attended to complete a site visit within 10 working days of registering the enforcement case. The Council has again acted in line with its policy and I do not find fault.
76. The Council only wrote to Mr X and the pub owner on 14 October 2020 to detail the next steps. This was outside the 28 days detailed in the Council’s enforcement policy and is fault. While this is fault, I do not consider this delay is significant enough to cause a personal injustice to Mr X.
77. By 14 October 2020, the Council decided there was a breach of planning controls and contacted the pub owner accordingly to ask them to act to resolve the breach. This contact was an attempt at negotiating a resolution with the pub owner in line with the Council’s policy. I do not find fault with the Council for attempting to negotiate with the pub owner first.
78. Since the pub owner did not take the action requested, the Council escalated to formal enforcement action by issuing a Planning Contravention Notice. The Council has acted in line with its policy and taken proportionate action to the breach it discovered. I do not find fault with the actions of the Council.
79. One of the options the Council presented to the pub owner was to submit a retrospective planning application to bring the unauthorised structures into line. The pub owner decided to follow this option. Since the pub owner complied with the Council’s request, the Council did not need to take further action until the it knew the result of the planning application.
80. When the Council refused the pub owner’s planning application, the Council’s enforcement team contacted the pub owner to request removal of the unauthorised structures by 29 September 2021. The Council has acted in line with its policy and taken suitable steps to address the planning breach. The Council has used its discretion to give the pub owner a timescale to remove the unauthorised structures. This timescale is reasonable and not something the Ombudsman would look to question.
81. The Council attended the site near the end of the timescale to find out if the pub owner had complied with its request. The Council has monitored the situation and determined the pub owner had failed to comply with its request. The Council entered into discussions with the pub owner because the pub owner advised they were looking to appeal the refusal of the planning appeal. The Council’s decision over enforcement action is discretionary. The Council was entitled to wait for the planning appeal if it considered this was imminent. The Ombudsman would not find fault with the Council’s decision.
82. Since the pub owner did not submit a planning appeal, the Council decided to issue a formal Enforcement Notice. The Council has continued down its process and I do not find fault.
83. The Council was within the timescales of the Enforcement Notice when the pub owner made an appeal against the refusal of the planning permission. The pub owner was entitled to appeal the refusal of the planning permission. It was only proper the Council placed its enforcement investigation on hold until the outcome of the planning appeal was decided.
84. Since the planning appeal has not been decided to date, the Council has not progressed further with its enforcement case. The Ombudsman cannot look to prejudge the future actions of the Council. It is the Council’s decision about what steps to take in the enforcement matter once the planning appeal is resolved.
85. The Council has followed its enforcement process, taken suitable steps to move through the different stages of enforcement and ultimately reached formal enforcement. The Council has placed this on hold pending the pub owner’s appeal. I do not find fault in how the Council has handled this matter to date and cannot look to prejudge an open enforcement case.

Parking

What happened

86. Mr X reported obstructive parking to the Council on 31 July 2020. The Council directed Mr X to make an application to the South Essex Parking Partnership (SEPP) for consideration of installation of traffic regulations on 3 August 2020.
87. Mr X submitted an application for new parking restrictions to the SEPP on 16 August 2020. Mr X requested installation of double yellow lines and a bus stop marking outside his home. Mr X said patrons of the pub parking in such a manner that blocked access to his property.
88. The SEPP completed visits on 23 September 2020, 30 October 2020 and 21 December 2020 to witness any obstructive parking. During the visit of 31 October 2020 the Council witness two vehicles parking in front of the bus stop but no other obstructions on this, or the other two, visits.
89. The SEPP officer completed their report on 6 January 2021. The SEPP officer noted they did not witness any obstruction to Mr X’s property and, in any event, it did not introduce parking restrictions for individual properties. The SEPP officer did witness obstruction to the bus stop and recommendation installation of a bus stop marking which could be extended to cover the entrance to Mr X’s property.
90. The SEPP officer liaised with the Council and agreed to proceed with installation of the bus marking on 12 January 2021. The Council informed Mr X of its decision. The Council installed the markings on 8 April 2021.
91. Mr X complained to the Council about its decision. The Council provided its Stage 1 complaint response which Mr X also disputed.
92. The Council issued its Stage 2 complaint response on 23 April 2021. The Council said:
• The SEPP officer reviewed the full information provided and visited the location at various dates and times of day.
• The SEPP officer concluded there was no sustained parking on the road during the time the pub was closed but there was an increase in parking during the Covid-19 pandemic lockdown.
• The SEPP officer also witness parking when the pub was open and witness obstruction to the bus stop but not Mr X’s property. The SEPP officer recommended installation of bus markings which could also extend to outside Mr X’s property to address any issues with people blocking Mr X’s driveway.
• The SEPP officer declined installation of double yellow lines based on its policy and low priority.

Analysis

93. Mr X complained about the merits of the Council’s decision not to install double-yellow lines in the village since it completed the site visit during the Covid-19 Pandemic lockdown when the pub was closed.
94. The Council responded to Mr X’s first contact promptly and directed Mr X to the correct procedure on 3 August 2020. After Mr X made a SEPP application, the Council began its consideration of Mr X’s application shortly after, completing the first visit on 23 September 2020. The Council went on to complete three visits on 23 September 2020, 30 October 2020 and 21 December 2020.
95. The Council has followed its process by considering Mr X’s application and completing site visits.
96. While Mr X said the Council completed visits during the Covid-19 pandemic lockdowns, this is not correct. The UK’s second national Covid-19 pandemic lockdown began on 5 November 2020 and ended on 2 December 2020. All three of the Council’s visits occurred outside this time. I do not find fault with how the Council completed the visits.
97. The Council officer compiled a report on 6 January 2021 based on the visits and information provided by Mr X. The Council could not find evidence of obstruction of Mr X’s driveway and noted that it does not provide double yellow lines for individual residents houses in line with its policy. The combination of these two factors meant the Council decided not to install double yellow lines according to Mr X’s request. The Council has reached this decision in line with its policy and I do not find fault.
98. The Council officer did recommend installation of a bus marking because they witnessed obstruction of the bus stop during the visits. The decision to recommend installation of bus markings is proportionate to the obstruction witnessed. The Council officer also recommended extending the bus markings to cover Mr X’s driveway. The Council officer had no obligation to extend the bus markings but did so for Mr X’s benefit. There is no fault in the Council’s decision and no injustice to Mr X either.

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Agreed action

99. Within one month of the Ombudsman’s final decision the Council should:
• Offer installation of noise monitoring equipment into Mr X’s property to capture evidence of the noise nuisance Mr X is complaining about. While the Council should offer this within one month, it may be the actual agreed on installation date falls outside one month.

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Final decision

100. While there was no fault by the Council I consider the proposed recommendation is appropriate in the circumstances. I have completed my investigation as the Council accepted my recommendation.

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Parts of the complaint that I did not investigate

101. I did not investigate Mr X’s complaint the Council changing the license for the pub. This is because the Ombudsman cannot investigate late complaints unless we decide there are good reasons.
102. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. This is defined by the legislation that governs how the Ombudsman operates.
103. While Mr X did not move into the property until 2020, and only became aware of the change in licensing at this time, the Council changed the license in 2018. This means the situation Mr X is complaining about both pre-dates his ownership of the property and falls outside the Ombudsman’s remit based on time.

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Investigator's decision on behalf of the Ombudsman