Summary: Mr X complained that the Council failed to take action to prevent a pub near his home from making noise and failed to react appropriately when informed that the pub had no licence to have tables on the pavement outside. We found no fault on the Council’s part.

The complaint

1. The complainant, Mr X, says the Council:
• failed to take action to stop a pub near his home making noise; and
• failed to react appropriately when he told it the pub had no licence to have tables on the pavement outside.
2. Mr X says the Council’s fault has caused him an injustice because he is awoken every morning by the noise of deliveries and kept awake every night by noise and smoke made by pub customers.

Back to top

What I have investigated

3. I have investigated Mr X’s complaint back to July 2021. I have not investigated matters which took place before this because these issues are late and Mr X could have complained to us sooner. I have investigated up to July 2022 when Mr X complained to us.

Back to top

The Ombudsman’s role and powers

4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)

Back to top

How I considered this complaint

8. I considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Licensing

10. Public houses need licenses to operate. They may also have a separate licence allowing them to place tables outside. Until 2020 these licences were granted under Part 7A of the Highways Act 1980. In 2020 the Business and Planning Act 2020 came into force as a result of the COVID-19 pandemic. The Act introduced a streamlined and cheaper route for businesses such as pubs and cafes to obtain a pavement licence allowing them to place removable furniture on the highway adjacent to their premises so they could trade through COVID-19 restrictions. The consultation period was reduced to seven days.
11. After applying for a pavement licence, the applicant must display a notice on their premises in an easily visible spot for seven days. The local council must publicise the application in such a manner as it considers appropriate, for example on its website. Members of the public can contact the council and make representations.
12. Once a pavement licence is granted the applicant will also benefit from deemed planning permission to use the land for anything done pursuant to the licence while the licence is valid.
13. Councils can place reasonable conditions on licences or revoke them if they cause problems or if misleading statements were made in the application process.

Noise nuisance

14. Complaints about noise are governed by the Environmental Protection Act 1990. On receiving a complaint about a noise nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance’. To do so, it must either:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• Injure health or be likely to injure health.
15. The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. Sometimes when a complainant is genuinely distressed councils may find that, objectively, the noise is insufficient to amount to a statutory nuisance.
16. A council officer will visit to make an independent judgment as to whether the noise amounts to a statutory nuisance. They will consider the timing and duration of the noise as well as the volume. Councils may use sound measuring equipment though there is no statutory requirement to do so.
17. If a council decides the noise amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop the noise. If it decides the noise does not amount to a statutory nuisance it can continue to use informal intervention to try to resolve the problem.

Key facts

18. Mr X has lived next to a pub for several years. He first complained to the Council about unacceptable noise from the pub in 2019. That is beyond the scope of this investigation.
19. Mr X complained about noise again on 1 October 2021 referring to an incident on 11 September 2021 when there were 30 to 40 people outside the pub at 12.20 am making noise.
20. On 7 October an environmental protection officer (EPO) telephoned Mr X to obtain further information. He explained he would contact the licensee but would only deal with the noise aspect of the complaint and that the use of the outside space would be referred to the licensing team.
21. The same day the EPO wrote to the licensee of the pub asking him to address the issue of noise from the use of the outside space. He also explained that, if nuisance was witnessed from a nearby residential property, a noise abatement notice would be served.
22. On 22 October Mr X contacted the Council again saying he had heard nothing in response to his concerns. He said there was shouting outside the pub almost every day, particularly between Thursdays and Sundays. He asked whether the pub had a licence to use tables outside.
23. An EPO responded on 25 October apologising for not updating Mr X. He said a letter had been sent to the licensee about the noise and asked whether the problem was ongoing.
24. Mr X confirmed there was ongoing nuisance from pavement drinkers and shouting from the first-floor balcony. He said the licensee had installed tables and chairs on the pavement and on the balcony without planning permission. The EHO explained this was a licensing issue and advised Mr X to contact the Markets team about the use of the pavement area. He gave Mr X their contact details. The officer asked Mr X to contact the Environmental Protection Team (EPT) again when he was being affected by the noise so they could substantiate it.
25. An EPO visited the pub on the evenings of 29 and 30 October 2021. The Council says the officer stood 3 metres from the premises and assessed the activities of customers using the external area. The officer considered the level of noise witnessed was reasonable and at a level that was expected for such use and of such premises in the area.
26. On 30 November Mr X sent an email to the Licensing and Development (L and D) team referring to noise caused by drinking outside the pub and on the balcony. A licensing officer responded on 3 December 2022 explaining that the premises did not hold a shop front licence and should not be placing tables and chairs beyond the boundary of their property. The officer confirmed she would forward Mr X’s email to relevant departments and gave him their contact details.
27. On 10 December 2021 Mr X sent an email to the EPO asking what action was being taken in relation to the noise. He said he had contacted the noise team twice the previous night because of shouting and swearing on the balcony and pavement which continued until past 10.30 pm.
28. Mr X carried out a search at the Land Registry which showed that the pub’s land did not include any part of the pavement. On 14 December he sent this information to the L and D team. They passed it on to the Shopfronts team leader who assigned an officer to visit the premises.
29. On 20 December a Shopfronts Service officer visited the pub and spoke to the licensee who claimed there was private land attached to the premises and he would provide evidence of this. The officer then had several telephone calls and emails with the licensee, but he provided no information to conflict that provided by the Land Registry. The officer therefore informed the licensee that he was required to apply for a pavement licence. The licensee agreed to do so.
30. On 19 January 2022 Mr X sent an email to the EPO saying he was unable to get a reply via email or telephone from the Licensing team. He said he had received an email from an officer on 3 December 2021, but she had failed to respond to his further emails, telephone calls and letters. The EPO sent Mr X contact details for the Licensing team.
31. The same day Mr X made a complaint about the Council’s failure to respond to his telephone calls and emails about the noise and its failure to take action against the licensee for using tables on the pavement without a licence. He said his concerns had been unaddressed since he contacted the Council on 1 October 2021 and his case had been passed from the EPT to Licensing who had referred him to the Markets/Street Trading team.
32. On 22 January Mr X reported noise at 5:37 pm. He complained about customers using benches on the pavement and “screaming, yelling, swearing and screeching”. The Council says officers tried to contact Mr X by telephone at 8.48 pm but received a message that the number was not recognised. They carried out a visit at 10.30 pm and considered the noise from customers using the external area fell within acceptable limits. Mr X says this was several hours after he reported the issue and the noise had stopped.
33. On 24 January Mr X contacted the EPO saying the weekend had been particularly noisy with pavement drinking on the Friday and a large party on the balcony on the Saturday. The EPO advised him to report the noise when it was happening so officers could visit to assess the impact inside his property.
34. The same day the EPO sent an email to the licensee saying the Council continued to receive complaints about noise from the use of the pavement outside the pub. He said there had been no improvement since the email he sent on 7 October 2021 and asked the licensee to contact him.
35. The licensee responded saying that, when officers visited the premises in October 2021, they had raised no concerns. He also said that, when officers visited on the evening of 22 January, they spent around three hours outside checking noise levels and spoke to the security guards and management. He confirmed that signs were displayed in the pub asking customers to leave the area quietly and that he employed security guards at weekends to make sure this happened.
36. The EPO asked the licensee to monitor customers to prevent noise impacting residents.
37. On 25 January the EPO asked the Shopfronts team leader to contact Mr X. The Shopfronts team leader sent an email to Mr X explaining the team was gathering information but, if a shopfront licence or pavement licence was required, it was likely the licensee would qualify if he applied for one. Mr X responded advising that he had received an email from the L and D team stating the pub had no shopfront licence beyond their private boundary and providing the information from the Land Registry.
38. The Shopfronts team leader confirmed further investigations were taking place with the licensee and the Land Registry. He reminded Mr X of the departments he should contact regarding antisocial behaviour and alcohol licensing issues and provided their email addresses.
39. On 26 January Mr X sent a recording of the noise from 21 January to the EPO. He also referred to the party on the balcony on 22 January. The EPO responded saying the licensee had informed him that, as it was winter, hardly anyone was using the seating outside. He said enforcement officers had visited the pub on 22 January and he would ask them for their assessment. He asked Mr X which days and times were the busiest. Mr X confirmed the busiest times were Thursday evening, Friday and Saturday but stated “to be honest the problem is that the noise is random”. He also attached a video from 20 January 2022 and said it showed drinkers overcrowding the outside seating area and public pavement, despite the landlord’s assertion that people were not using the outside area.
40. The officer responded that, as the noise was not constant, it would be difficult for officers to witness it as the days mentioned were the busiest for the team. He advised Mr X to contact the EPT when the noise was taking place so officers may visit. Mr X confirmed he would continue to log the issues. He also referred to other noise issues concerning the pub including 6 am deliveries, noisy refrigeration units and crashing of glass bins.
41. On 28 January the EPO sent an email to the licensee saying he was satisfied with the feedback received from the officers who visited the pub on 22 January. However, officers would continue to investigate any complaints received. He asked the licensee to ensure visible signs were in place to warn customers about noise and that staff check on customers outside to ensure no unreasonable noise was being made.
42. In February the licensee applied for a pavement licence. The Council advertised the application on its website and consulted with agencies such as the police and its street scene team. It received no objections and approved the application.
43. On 17 February an officer from the Community Safety, Enforcement and Business Regulation team responded to Mr X’s complaint at stage 1 of the Council’s complaints procedure. He said:
• an EPO had advised the licensee to consider displaying signs reminding customers to be mindful of residents nearby, consider reducing the number of customers outside, and check the external area regularly to ensure the noise was not excessive;
• the EPO sent letters to the licensee warning that, if a statutory noise nuisance was witnessed in future, the Council would serve a noise abatement notice; and
• officers had visited the site on three evenings between October 2021 and January 2022 and found the noise to be within acceptable limits.
44. The officer concluded there was no fault in the actions of the EPT. He was also satisfied with the actions of the L and D team/Shopfronts team in relation to their investigation into whether the premises required a pavement licence. However, he accepted that Mr X’s concerns should have been referred to the correct departments at an earlier stage. He confirmed he had asked the manager of the EPT to ensure that, in future, officers make referrals to other services as soon they are aware of matters that require investigation.
45. The officer also advised Mr X of his right to take his own action under section 82 of the Environmental Protection Act by asking the Magistrates’ Court to make an order for the abatement or prevention of nuisance.
46. In March the EPO sent an email to the licensee again asking him to display signs warning about noise in the area where the benches were situated and in the smoking area. He also suggested using a more effective barrier between the two balconies. The licensee confirmed he was happy to do this, but Mr X felt a more substantial barrier would make the situation worse because customers would no longer be able to see his balcony and would be even less mindful of creating a disturbance.
47. On 10 May Mr X telephoned the Council at 6.15 am reporting noise from deliveries to the pub. The duty officer returned Mr X’s call at 9.41 am but the call did not go through.
48. The Council’s Chief Executive responded to Mr X’s stage 2 complaint in June 2022. He concluded that Mr X’s concerns about noise nuisance had been dealt with appropriately and the Licensing team had also taken appropriate action to address Mr X’s concerns. However, he apologised for the miscommunication between teams.
49. On 25 June at 11.44 pm Mr X reported shouting, swearing and screaming outside the pub. The night duty officer telephoned Mr X but the number was not recognised.
50. On 5 July 9.28 pm Mr X reported loud noise from the pavement outside the pub and the balcony. The EPO responded the following day confirming he had written to the licensee again.
51. On 6 July Mr X contacted the EPO saying there had been noise all weekend from the pavement and the balcony. He also said there was smoke coming into his dining room and living room. The EPO raised these issues with the licensee who offered to contribute towards the cost of erecting a fence between the balconies. The EPO agreed to put this suggestion to Mr X and asked the licensee to put a ‘no smoking’ sign on the table next to the boundary with Mr X’s balcony.
52. On 12 July the Shopfronts team leader wrote to Mr X confirming that one of his officers would re-visit the pub to assess the situation with the benches on the pavement. He explained that the officer would not be assessing noise levels as this was outside the remit of the Licensing team. The officer would simply be checking whether there was any breach of the conditions of the pavement licence. The officer visited but found no breaches.
53. Mr X complained to us on 25 July.

Analysis

Noise

54. Mr X says he has contacted the Council numerous times, but no action has been taken to stop the noise. He says the EPT has failed to respond to his noise reports within a reasonable time and, by the time t officers arrive, the noise has stopped.
55. The Council says that, during the out of hours service, officers try to deal with as many of the noise complaints received as possible. They are unable to visit all properties involved, so will telephone complainants to confirm whether the noise is ongoing. If so, a visit will be arranged. If the complainant does not answer the call, the officer will move onto the next complaint.
56. The Council says officers responded to Mr X’s telephone calls reporting noise but were unable to contact him to ascertain whether the noise was ongoing. It says Mr X admitted having his phone switched off or set to ‘do not disturb’ after reporting the noise. So, officers were unable to visit him to assess the impact of the noise he reported. The Council says this was brought to Mr X’s attention and he was advised to make himself available for officers to arrange visits.
57. Mr X denies that his phone was switched off or set to ‘do not disturb’. He says that, in an email exchange with the EPO, the officer said he would call him and he replied that he would ensure his phone was not switched off or set to ‘do not disturb’. He says this did not mean that his phone had been set this way.
58. Mr X says the EPT has recently informed him that it held an incorrect telephone number for him. He says this is why officers were unable to contact him. However, officers have been able to speak to Mr X by telephone on occasion so they must have had the correct telephone number previously.
59. It is unlikely that I could now reach a safe conclusion about precisely what happened in relation to the telephone calls during the period December 2021 and June 2022 in the absence of tangible evidence. So, I do not intend to pursue this issue further.
60. The Environmental Protection Act requires councils to take 'reasonable and practicable steps' to investigate a potential statutory nuisance. I am satisfied that the Council has done so in this case. An EPO contacted the licensee by telephone in October 2021 following Mr X’s report of noise and sent a warning letter explaining what action would be taken if officers witnessed a statutory nuisance. Officers visited the site on a few occasions between October 2021 and January 2022 but found no statutory nuisance. In these circumstances, the Council cannot serve an abatement notice. Whether the noise amounts to a statutory nuisance is a matter for officers’ professional judgement taking into account the timing and duration of the noise, its volume and the nature of the area.
61. Officers also tried to resolve the situation informally by contacting the licensee and asking him to consider displaying signs asking patrons to be mindful of residents, carry out regular checks on external tables to ensure the noise level was not excessive and display no smoking signs on the table nearest to Mr X’s property.
62. The Council says the EPT will contact Mr X and offer to visit his property to try to substantiate the allegations of noise nuisance. In addition, the out of hours duty officer will prioritise any further reports of noise nuisance received from Mr X when the out of hours service is operational.
63. As regards noise from deliveries, the Council says Mr X has made no further reports of noise from early morning deliveries since May 2022. It says that, if this is still impacting Mr X, he should report any further issues.

Licence

64. I find the Council acted appropriately in response to Mr X’s concerns about the use of benches outside the pub. Officers visited the licensee and investigated whether the external area was in the pub’s ownership. Once they were satisfied that the area was not private land, officers required the licensee to apply for a pavement licence.
65. The Council advertised the application on its website and consulted with the police and its street scene team. As no objections were received and no evidence of a statutory noise nuisance had been identified, the Council approved the application. I find no grounds to criticise this decision given that there are limited grounds on which a refusal can be based.
66. Mr X has alleged that the licensee is in breach of the pavement licence because the tables are still in use after 10 pm. The Council says officers have not observed use of street furniture or external benches after 10 pm. In these circumstances, the Council is unable to take any action.
67. Mr X says the Council has failed to take retrospective action against the pub for trading without a pavement licence for several years. We would not expect the council to take such action.

Back to top

Final decision

68. I do not uphold Mr X’s complaint.
69. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

Back to top

Investigator's decision on behalf of the Ombudsman