Summary: Z complained the Council failed to take effective action about noise nuisance and breach of licence conditions by licensed premises close to their property, affecting their wellbeing and enjoyment of their home. We have not found fault by the Council with the way it responded to, and investigated, Z’s complaints about noise and breach of licence conditions.

The complaint

1. The complainant, who I am calling Z, complains the Council failed to take effective action in response to their complaints about ongoing noise nuisance and breach of licensing conditions by premises close to their home. Z says the Council’s:

• licensing and environmental health teams operated in silos. The lack of internal communication limited the effectiveness of the Council’s response to their complaints. The problems are one entire issue. They should not have to deal with separate teams; and
• failure to take effective action has meant the noise and other problems caused by the premises are continuing, affecting the enjoyment of their home and wellbeing. Z wants the Council to take a joined-up approach to the issue and ensure the licensing conditions are adhered to, including with regard to noise.

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What I have and have not investigated

2. 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)
3. I have investigated events from August 2021. Z brought their complaint to us in August 2022. I do not consider there are good reasons why a complaint about things that happened before August 2021 could not have been brought to us before August 2022.

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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 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)
6. 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

7. I spoke to Z, made enquiries of the Council and read the information Z and the Council provided about the complaint.
8. I invited Z and the Council to comment on a draft version of this decision. I considered their responses before making a final decision.

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What I found

What should have happened

Noise Nuisance

9. Complaints about noise are governed by the Environmental Protection Act 1990. When a council receives a complaint about a noise nuisance, it must investigate to see whether it amounts to a ‘statutory nuisance’.
10. To amount to a statutory nuisance, a noise nuisance 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.

11. The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. This means that, sometimes, even when a complainant is genuinely distressed, councils may find that, objectively, the noise is insufficient to amount to a statutory nuisance. We cannot find fault on that basis.
12. Council officers will 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.
13. If a council decides noise amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop, though it may delay in doing so to allow a perpetrator to take remedial action.
14. If a council decides that noise does not amount to a statutory nuisance it may use informal intervention to try to solve the problem on the complainant’s behalf.

Business licencing

15. The Licensing Act 2003 sets out which businesses may need a licence to sell alcohol and what type of licence a business may need.
16. Licensing conditions are restrictions attached to a licence which dictate how the premises can operate.
17. A council, as licensing authority, must carry out its functions under the Act with a view to promoting the licensing objectives set out in the Act, which are:

• the prevention of crime and disorder;
• public safety;
• the prevention of public nuisance; and
• the protection of children from harm.

The roles of a council’s licensing and environmental health teams

18. A licensing team will investigate reports of a breach of licence conditions by premises and, where appropriate, carry out enforcement duties. A nuisance under The Licensing Act 2003 is not the same as a statutory nuisance under the Environmental Protection Act 1990. The Licensing Act does not define public nuisance. A council will have a discretion about what activity amounts to a public nuisance.
19. An environmental health team will investigate 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.

Issues with licensed premises within the Council’s area

20. The Council’s website publishes guidance about problems with a pub or other licensed premises. This says issues such as loud noise, crime and disorder, or the premises not operating within its licence, should be reported, and:

• Problems related to noise should be reported to the environmental health team;
• A suspected breach of the premises’ licence should be reported to the licensing department;
• Problems with crime, anti-social behaviour and disorder should be reported to the police; and
• A suspected breach of planning control, like misusing an outbuilding with planning restrictions, should be reported to the planning department.

The Council’s enforcement policy for business licences

21. The Council’s published enforcement policy says:

• It is normal practice to advise business licence holders who may be subject to enforcement action of the nature of the complaint and provide a reasonable opportunity to address any issues;
• Businesses should receive clear assistance from the licensing team on the action they are required to take and the timescale; and
• It will have regard to evidence of willful, reckless or negligent misconduct when making decisions as to whether enforcement action in court is appropriate. It will also reassure itself the criteria in the Crown Prosecution Service Code for Prosecutors have been met.

The Council’s procedure for noise complaints

22. The Council’s published procedure says:

• Complaints about noise are allocated to a case officer who will contact the complainant within 10 working days;
• The case officer will investigate the complaint and decide if the noise is causing a statutory nuisance;
• If appropriate, based on the information obtained about the noise, the Council may write to the person responsible for the alleged noise informing them a complaint has been received; and
• The Council will offer the Noise App to the complainant which provides live recordings of the noise for assessment. In some circumstances diaries may be sent to the complainant. The recordings are assessed when received. If the case officer is of the opinion the noise is likely to be a statutory nuisance, officers will visit the complainant’s property to witness the noise directly.

What happened

Background

23. I have set out a summary of the key events below. It is not meant to show everything that happened.
24. Although I have only investigated what happened from August 2021, I have set out some background by way of context.
25. Z has lived close to licensed premises (the premises) for a number of years. Z, together with other neighbours, had been in contact with the Council for some time before 2021 about noise and other issues concerning the premises.
26. In June and July 2021, Z complained to the Council about noise and breach of the licence conditions by the premises.

August to September 2021

27. In August, the Council’s licensing team replied to Z’s complaint about breach of licence conditions. It said its officers had visited the premises at relevant times and viewed the premises’ CCTV footage for the dates on which Z and other residents had complained about a breach of licence conditions. It had not obtained evidence to support formal action for a breach of licence conditions by the premises.
28. Z complained again about noise from the premises to both the licensing and environmental health (noise) teams.
29. In response to the complaint the Council:

• asked Z for more details so officers could check the premises’ CCTV footage;
• said its officers had been in the area at the relevant times but the noise levels did not amount to a statutory nuisance and there was no evidence of a licence breach;
• said the licensing team would send warning letters reminding premises about their licensing conditions; and
• asked Z to consider its offer of a Digital Audio Tape (DAT) recorder, noise app and diary sheets as this would assist the noise team with its investigations.

30. Z was unhappy with this response. Z complained the Council’s teams were working in silos. The noise issues involved both teams, but diary sheets and noise recordings provided to one team were then dismissed by the other.
31. In its reply to this complaint, the Council said it had made reasonable investigations, but did not have evidence, as yet, to support enforcement action.

October 2021 to April 2022

32. I have not seen evidence of any complaint to the Council by Z about noise or other issues with the premises during this period.

May 2022

33. Z complained to the Council about parts of the premises being used in breach of licence conditions and loud music most weekends. Z asked for a dedicated out of hours officer. Z also complained about the premises’ application for a Temporary Events Notice (TEN).
34. In response to the complaint, the Council said;

• It could not refuse a TEN application unless there were objections by the police or the environmental health team on certain specified grounds. There was no legal requirement to consult with residents and no right of appeal against its decision;
• Officers had provided advice to the licence holder which, if followed, should mean noise would not be heard beyond the premises’ boundary; and
• It did not have any statutory duty to provide an out of hours service.

June 2022

35. The Council told Z the licensing team was continuing to investigate the complaint about a breach of licence conditions.
36. Z made further complaints about noise nuisance and breach of licence conditions on two separate nights and sent the Council noise recordings and details of the breach. Z said they wanted one comprehensive reply from the Council, not separate replies from each team.
37. The Council provided Z with access to its noise app and diary sheets. It explained Z could upload live recordings of the alleged noise nuisance onto the app. It could then listen to these and advise whether the recorded noise constituted a statutory nuisance.
38. The Council’s records show it considered how its teams should respond to Z’s complaint. It decided, because of the different legislation, it was best to treat the issues separately to avoid confusion. Its licensing team would look again at the complaint about a breach of licence conditions.
39. Z complained again about the Council’s response to the premises’ TENs applications.

July 2022

40. The noise team told Z a case officer had been assigned to the complaint. Z had submitted two noise app recordings since 1 July. The case officer was continuing to investigate Z’s noise complaint.
41. The case officer listened to the noise app recordings and noted hearing heavy bass music, people chatting and some rowdy background noise.
42. The licensing team told Z it expected to complete its investigation of the reported breach by 18 July and would respond to the complaint then.
43. Z was unhappy with these responses and told the Council it should not be investigating the issues separately. Z said although the noise app recording confirmed music from the premises could be heard within their home, the noise team decided this was not noise nuisance. The Council was not doing anything to resolve the issues.
44. In reply to the further complaint about TENs applications, the Council told Z the legal process had been correctly followed.

August 2022

45. Z contacted us about their complaint.
46. The Council issued its final response to Z’s complaint. It said:

• Joint visits by noise and licensing team officers took place when resources allowed:
• The noise team had received 11 noise app recordings from Z since 1 July. The officer acknowledged a bass component could be heard in a recording, but this was not a statutory nuisance on this occasion;
• It did not currently have sufficient evidence to substantiate a statutory nuisance. The case was still open, and Z should continue to submit noise app recordings;
• Officers would conduct out of hours visits subject to availability. An officer would also contact Z to arrange three visits at the relevant dates and times; and
• It was satisfied there had been an appropriate investigation of noise issues and a satisfactory response to the complaints.

47. Council officers carried out an out of hours visit on 19 August. Their notes do not refer to any issues with noise or licence conditions.
48. The Council told Z it had officers available to visit on Friday and Saturday nights over a number of weeks to assess the issues experienced from within Z’s home.

September 2022

49. Z submitted three noise app recordings of loud music and voices recorded outside permitted hours.
50. The Council arranged out of hours visits to the premises (and other licensed premises in the area) every Friday and Saturday night from September to November.
51. Officers visited the premises and delivered a letter warning about noise levels. The licence holder was told to ensure noise levels did not cause a nuisance.

October 2022

52. In an update to Z, the licensing team said:

• It had spoken to the premises’ manager regarding Z’s concern in May about the use of the premises outside of times allowed by the licence conditions. This was to ensure the premises were managed appropriately and avoid any future occurrence;
• Regarding Z’s complaint in June about a breach of licence conditions, its officers had viewed the premises’ CCTV footage for the dates complained about and some later dates. Officers checked for use of areas outside of permitted hours and other breaches. On all dates checked, nobody was seen using these areas outside of the permitted hours;
• It was noted doors to the premises at times remained open for longer than necessary for the movement of patrons in or out of the building. This had been raised with the premises’ manager to monitor and reduce the length of time doors stayed open when nobody was passing through;
• It was noted during the visit, notices were in place stating the permitted hours areas could be used and a no entry banner placed on the door when no access to these areas was allowed; and
• There had been recent monitoring of licensed premises in the area on Friday and Saturday nights over the last five weeks. Officers were checking for any breach of licence conditions as well as disturbance that could be considered a statutory nuisance or anti-social behaviour. All visits to the premises had been recorded as satisfactory with no further action required.

53. The noise team made further offers of visits to Z’s home. Z said they did not want these visits as their relationship with the team had now broken down. And officers did not need to be inside their home to hear the noise. It could be heard on the noise app recordings and if the officers visited the area.
54. The noise team told Z it had now closed its case about the noise complaint.

November 2022

55. The licensing team advised the premises about the need to keep all doors shut at relevant times, following a report about noise levels from the out of hours team.
56. The monitoring period finished in November 2022.

The Council’s response to our enquiries

57. In its response to our enquiry about how it deals with complaints about licensed premises, including noise, and joint working by its licensing and environmental health teams, the Council said:

• It logs and responds to complaints about licensed premises within five working days;
• If the complaint relates to alleged noise nuisance, a separate complaint is logged with the environmental health team;
• The licensing and noise teams operate under different legislation and enforce different regulations. Where a complaint, such as noise, crosses over the two teams, they will work together, carrying out joint visits and sharing necessary information. Out of hours visits are jointly planned to cover both remits;
• Both teams are within The Communities and Environment Directorate and report to the same Assistant Director; and
• Officers were on duty every Friday and Saturday evening in September, October and November 2022 to monitor licensed premises’ compliance with licence conditions and environmental health related matters. The visits were jointly planned by both teams and costs shared between their budgets.

My findings – was there fault by the Council causing injustice?

58. My findings are based on the evidence seen, including the records provided to me by the Council in response to my information request. I have summarised the relevant evidence in the “what happened” section above.
59. It is not my role to decide whether the evidence Z provided to the Council, and the evidence it obtained, showed the noise from the premises amounted to a statutory nuisance. This was a decision for the noise team officers to make. It is also not for me to judge whether the premises breached licence conditions. This was a matter for the licensing team.
60. Our role is to review the process followed by the Council in response to Z’s complaints about noise nuisance and breach of licensing conditions. We can find fault with councils, if (for example) they do not follow an appropriate procedure or take account of relevant information. We cannot question the merits of a council’s decision if it has properly followed its procedures and considered the relevant information.

The Council’s response in August and September 2021

61. I have considered the action taken by the Council in August and September 2021 in response to Z’s complaints about noise from the premises and breach of licence conditions.
62. During this period, licensing officers investigated the complaint about a breach of licensing conditions, visited the premises at relevant times, and viewed the premises’ CCTV footage for the relevant dates. The Council’s officers had also visited the area at relevant times and reported the noise levels did not amount to a statutory nuisance.
63. The Council informed Z about the outcome of these investigations, which was that it had not obtained evidence to support formal action for a breach of licence conditions by the premises, and the noise levels did not amount to a statutory nuisance.
64. It also confirmed it would remind premises in the area about their licensing conditions, and explained ways in which Z could provide information about noise and any breaches to assist with its investigations.
65. Based on the information seen, I am satisfied the Council properly acted on and investigated Z’s reports in accordance with its published procedures and policies. I have not found fault by the Council on this part (a) of the complaint.

The Council’s response from May to August 2022

66. I have considered the action taken by the Council from May to August 2022 (which is when Z contacted us) in response to Z’s further complaints about noise from the premises and breach of licence conditions.
67. Its licensing team confirmed it would investigate Z’s report of licence breaches. Officers raised concerns about the use of the premises outside of permitted times, and issues about open doors with the premises’ management. They checked the premises’ CCTV footage for evidence of breach of licence conditions.
68. Officers monitored licensed premises, including the premises, for any breach of licence conditions on Friday and Saturday evenings over a three month period Their reports of visits to the premises did not indicate any breaches.
69. The Council told Z about the outcome of the licensing team’s investigations in October 2022.
70. The noise team assigned a case officer to Z’s complaint about noise nuisance. The Council provided Z with access to its noise app. The case officer listened to the noise app recordings Z submitted but decided the noise heard did not amount to a statutory nuisance. It wrote to the premises warning about noise levels.
71. The team told Z it did not currently have sufficient evidence to substantiate a statutory nuisance, but Z could continue to submit noise app recordings. It also offered visits by officers to assess the noise from inside Z’s home.
72. The officers monitoring the premises from September to November also checked for any disturbance (including noise) which could be considered a statutory nuisance. Their reports did not indicate evidence of noise levels from the premises amounting to a statutory nuisance.
73. The noise team told Z about the outcome of its investigations and that it had closed its case about the noise complaint.
74. Based on the information seen, I am satisfied the Council properly acted on and investigated Z’s reports in accordance with its published procedures and policies. I have not found fault by the Council on this part (b) of the complaint.

Z’s complaint about the operation of the licensing and noise teams

75. The Council has published how it deals with concerns about pubs and licensed premises, and that complaints about noise should be reported to its environmental health team and complaints about licence breaches to the licensing team.
76. It has confirmed this is because the licensing and noise teams operate under different legislation. It has also explained how the teams work together to investigate an issue such as noise which involves both teams.
77. The information I have seen shows the Council considered Z’s request for one investigation and response to the complaint issues and why it decided to continue to look at these separately.
78. It is not for us to tell a council how its teams should operate. In my view the Council has properly considered how it should conduct its investigations into noise and licence breach complaints. It has taken into account the different legislation governing these issues and how information relevant to both investigations can be shared.
79. I understand Z is frustrated with the Council’s process, but based on the evidence seen so far, I have not found fault with this part (c) of the complaint.

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Final decision

I have completed my investigation of this complaint. I have not found fault by the Council with the way it responded to and investigated Z’s complaints about noise and breach of licence conditions.

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Investigator's decision on behalf of the Ombudsman