Summary: We uphold complaints made by a mother and daughter (Mrs Y and Miss Z) that the Council failed to take effective action to lessen the impact of a neighbouring bar / restaurant business on a flat Mrs Y owns and where Miss Z lives. These failings cut across the Council’s planning, environmental health and licensing services. As a result we consider Miss Z experienced the injustice of unnecessary and intrusive noise disturbance for more than three years. The Council has accepted our findings. At the end of this statement, we set out the action it has agreed to remedy this injustice and improve its services.

The complaint

1. Mr X, a planning consultant, represents ‘Mrs Y’ and ‘Miss Z’ (a mother and daughter). Since 2015 Mrs Y has owned a flat in the Council’s area. She let this privately until 2018, before Miss Z began living there. Mr X complains that between April 2017 and March 2023 the Council allowed the use of neighbouring premises as a bar / restaurant despite there being no planning permission for that use. Specifically, he complains:

• the Council knew since April 2017 the bar / restaurant traded from a building made up of two former buildings with partition walls removed. So, this was a new planning unit and any use required planning permission. But the Council delayed in asking the business to present a planning application seeking permission for the use (complaint 22 000 465);
• when the business did present such a planning application in July 2020 the Council then failed to decide that. The business eventually withdrew the application in March 2023 (complaint 22 000 465);
• that despite knowing of disturbance created by the business, the Council failed to take effective enforcement action using either planning, environmental health or licensing controls (complaint 22 000 465 for planning enforcement and 23 011 366 in respect of environmental health / licensing services).

2. Mrs Y and Miss Z say the business had a significant negative impact on anyone living in the flat. This was because of noise associated with:

• its use as a bar / restaurant creating music and patron noise;
• plant and machinery sited to the rear of the premises used for purposes such as refrigeration, ice machines, mechanical extraction of smells and so on;
• patrons entering or leaving the premises, often late at night and in the early hours of the morning, congregating on the street outside;
• other activities associated with the use such as disposing of glass bottles or noise from staff still on the premises after closing time.

3. They say the Council’s failure to control this noise has made it impossible for them to rent the flat commercially. While Miss Z has suffered mental and physical health impacts from exposure to the impacts of noise over a prolonged period of time.

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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 of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
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)

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How I considered this complaint

8. Before issuing this decision statement I considered:

• Mrs Y and Miss Z’s written complaint to the Ombudsman and any supporting information they provided, including that gathered in conversations with Mr X and his colleague;
• correspondence between the complainants’ and the Council pre-dating our investigation, covering matters subject to the complaint;
• information the Council sent us in reply to enquiries and that gathered in interviews with several officers involved in the events complained about;
• any relevant law, Government guidance or Council policy or procedures referred to in the text below;
• any relevant guidance published by the Ombudsman, referred to in the text below.

9. I also gave the complainants, Mr X, and the Council, opportunity to comment on a draft version of this decision statement. After taking account of comments, I explained changes I would make to the decision statement and gave both further chance to comment. I have taken account of any final comments received before completing this final version of the decision statement.

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What I found

General Background

10. Since 2015 Mrs Y has owned a flat above a shop located in the Council’s area. It is a ‘high street’ location with other shops nearby, as well as some hospitality businesses such as pubs, bars and takeaways. At first Mrs Y rented out the flat, but Miss Z has lived there since late 2018.
11. When Mrs Y first purchased the flat the neighbouring property was a retail shop with no residential or business use carried out adjacent to Mrs Y’s flat. I will call this ‘Unit A’.
12. A bar ran from the next-but-one property, which I will call ‘Unit B’. A planning permission given in 2013 allowed the use of Unit B on the ground floor as a bar, subject to certain planning conditions. These included requirements the business have schemes in place to limit fumes and odour from the kitchen; noise from mechanical plant and to help prevent noise affecting properties on either side. It also could not open beyond 11:00pm.
13. In 2014 the Council refused an application from the business asking to discharge planning conditions attached to Unit B. This was because the business did not provide enough information in support of its application. Although in 2015 the Council allowed a planning application extending the use of Unit B as a bar on to the first-floor level also. It imposed a planning condition saying the bar must follow a noise impact assessment presented as part of the application.
14. Also, in 2015 the Council gave planning permission for Unit A to have a change of use to become a restaurant. The Council made this subject to planning conditions. These restricted the opening hours to 11:00pm and required the shutting down of mechanical extraction equipment overnight. Also, that any machinery and plant comply with an acoustic report and odour control plan.
15. The business owner running the bar at Unit A was the same as that trading from Unit B. At first, they kept the two businesses separate. However, around April 2017 the business owner knocked through Units A and B. This created a single premises over two floors (‘the combined premises’). Until early 2023 a combined bar / restaurant business ran from the combined premises. Then the units again became separated and the business left the former Unit A. It continues to run from the former Unit B.
16. Since 2015 both complainants have had multiple contacts with different council services about the business and its impact on them. I have sought to gather information about those contacts from April 2017 onward. Later in this statement I set out my consideration about the Ombudsman’s jurisdiction to investigate the complaint back to this date.
17. I have sought to summarise the complainants’ contacts separately with each service area. This comprises the licensing service, statutory nuisance investigation team and then the planning service. In investigating statutory nuisance I note the Council has sometimes referred to this as its consumer protection investigation service. It has also referred at times to all of its environmental health services falling within regulatory services or public protection divisions. For ease I will refer to its environmental health service as that which investigates statutory nuisance. Although I distinguish this from its environmental protection unit (EPU). The EPU is responsible, among other things, for commenting on planning applications. I summarise the actions of the EPU in the section dealing with the role of the planning service.

The involvement of the licensing service

18. As I noted above Mrs Y used to rent the flat now occupied by Miss Z. Her last tenants left in October 2018.
19. Mrs Y decided to seek a review of the business’ premises licence which covers such matters as hours of opening, the serving of alcohol and so on. The purpose of the review was to consider if the business was acting in a way that breached the Council’s licensing objectives. Mrs Y said the business often exceeded its licensing hours (which were in any event later at weekends than opening hours allowed by the planning permissions on units A and B) and caused nuisance. This was through noise, vibration, gatherings of people in the street and other parts and increased traffic. She provided a detailed log of incidents compiled between October 2018 and February 2019. She provided a statement from her former tenant who said he and his partner were “driven out” of the flat because of the noise that would sometimes prevent sleep and shake objects in the flat.
20. In preparation for the review, Mrs Y had made a request for data from the Council. Included in the information disclosed was a note from a licensing officer made in April 2017 that they saw Units A and B combined into one. The licensing officer said he copied the planning service into this message as while the business told him it had the necessary permission for the changes, he was “not inclined to take this as read”.
21. The review noted the licence had specific clauses:

• allowing an alcohol licence until 1:00am at weekends;
• that noise heard in adjacent buildings should not exceed that produced “under similar conditions and during a comparable period” when there was no noise from the premises;
• that the business should keep a log of noise assessments and “take steps to reduce the level of noise where it is likely to cause a disturbance to local residents”;
• preventing disposing of glass after 11:00pm; and
• requiring the business to remedy within 14 days any “noise causing disturbance” to neighbours from plant and machinery.

22. The Council’s licensing committee heard the review in April 2019. It resolved to add an extra condition to the licence requiring the fitting of “a tamper-proof noise-limiting device”. It said this would be set “at a level determined by a representative of Environmental Health. This level must ensure no discernible bass beat or volume of music that the artist, song, lyrics can be heard / discerned in any room within any neighbouring residential property”.
23. In October and December 2019 site visits took place simultaneously at Mrs Y’s flat and the business premises, for fitting the noise limiter. Present were a noise consultant instructed by Mrs Y, another noise consultant for the business and Council officers from licensing and environmental health.
24. The Council told us that after this time licensing officers undertook regular checks of the business. It provided me notes of those. I noted some of these covered checks to ensure the business complied with legislation and Regulations introduced because of the COVID-19 pandemic and so not directly relevant to this complaint. I considered the following notes were relevant:

• that in December 2019 officers recorded hearing music from the premises “above background levels” – it said this led to an “official caution” as the business was carrying out a licensing activity without consent;
• that at the end of February 2020 officers heard music “clearly audible” to the rear of the premises – on a night when the business had a licence to stay open until 2:00am;
• that visits carried out in July and August 2020 did not identify any concerns. Officers said noise from patrons was audible because of windows left open to provide ventilation, in line with guidance issued because of the COVID-19 pandemic;
• that in October 2021 officers did not hear music louder than conversation. They recorded speaking with employees and finding they were keeping recordings of noise levels. Officers expressed the view the business was working to comply with its licensing conditions.

25. I noted also that in February 2022 licensing officers reviewed correspondence and recordings provided by Miss Z. They considered many of these did not identify potential licence breaches. However they noted, “it was evident by the recordings that at various times, individual voices could be heard as well as the ability to identify the song playing by the lyrics/tune. This may lend itself to there being possible wider, noise containment issues associated with the properties and/or the party wall”.
26. I spoke to a manager from the licensing service. He explained the service looked to work alongside other services such as environmental health when hospitality businesses were a source of complaint to neighbours. He told me officers from that service could also seek a licensing review if they considered the business caused harm to neighbours. However, the service could not introduce consideration of legislation other than the Licensing Act when deciding whether to review a licence (for example, legislation around 'statutory nuisance’ which I discuss below or planning law).
27. The manager explained a noise limiter could only control some amplified music from the premises. It could not impact patron noise and potentially a business could evade it, but officers never found evidence of this. The service believed it was not possible to reduce noise from the premises to a point where it would become inaudible in Mrs Y’s flat. The manager explained the service carried out more visits to the business than the notes reflected.
28. As a result of the business no longer operating from Unit A, the business now has a premises licence that covers Unit B only. This includes clauses:

• permitting the business to open until 12:30am every night;
• requiring “the […] noise level in any habitable room in an adjacent noise sensitive dwelling measured when the premises is open should show no increase when compared the […] noise level measured in the same position, under similar conditions and during a comparable period when noise is not being produced within the premises.”;
• requiring the closure of windows on the premises after 11:00pm;
• preventing disposing of glass bottles after that time also; and
• that the licence holder “conduct regular assessments of the noise coming from the premises on every occasion the premises are used for any noise generating entertainment function and shall take steps to reduce the level of noise where it is likely to cause a disturbance to local residents.”

29. There is no clause requiring a noise limiting device as this only applied to the licence covering the combined premises.

The involvement of environmental health statutory nuisance service

30. In July 2019 the complainants employed a noise consultant to monitor noise from inside the flat. Their report noted significant impacts on occupiers inside the flat. These came from music from the combined premises; mechanical plant and equipment; glass disposal into bins into the early hours of the morning and noise associated with patrons of the business.
31. The Council told us that in September 2019 it opened an investigation into whether the premises caused a statutory nuisance to occupiers of the flat. This was concurrent with the work required to fit the noise limiter imposed as a licensing condition. However, emails provided by the Council suggest this investigation did not begin until February 2020 when Mrs Y sent a series of recordings and videos taken on a mobile phone. She said these showed music from the premises remained clearly audible, including the lyrics and bass.
32. The Environmental Protection Act 1990 defines ‘statutory nuisance’. Such a nuisance can include noise from premises and machinery, but not noise caused by people on the street. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.

33. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
34. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
35. If the council finds a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
36. In February 2020 the Council’s EHO said Mrs Y’s recordings showed “the dominant noise is people noise, outside and through the party wall”. He said he wanted to undertake further monitoring. He suggested a date in February, to which Mrs Y proposed an alternative date in March. However, when the EHO went to confirm this, the day before the proposed visit, the date was no longer convenient. Shortly after the premises ceased trading because of restrictions introduced as a result of the COVID-19 pandemic.
37. The next consideration of this matter was in May 2021, when Miss Z contacted various Council services after the business resumed trading after another closure caused by the pandemic. The EHO who dealt with Mrs Y’s enquiries previously, responded in June 2021 noting “concerns” about the volume of music recorded by Miss Z. He said the Council wanted to ‘urgently’ fit recording equipment in the flat. He offered a date in June 2021 which Miss Z declined, proposing an alternative date later in the month.
38. Eventually the Council fitted recording equipment in July and the Council EHO listened to recordings gathered in September. He explained he did not consider the noise from patrons to the business enough to meet the threshold of a statutory nuisance. However, there was evidence of a statutory nuisance caused by the mechanical plant and equipment. The EHO encouraged Miss Z to gather further evidence around patron noise, especially those using a balcony to the rear of the premises. He said she could use a ‘noise app’ available via the Council website to do this.
39. So, that month the Council served a noise abatement notice. The notice required the business to commission an assessment of noise created by plant and equipment to be undertaken by an Institute of Acoustics registered contractor. It required it to provide details of that report to officers and undertake mitigation measures to reduce levels of noise from equipment below overnight background levels. The notice gave the business 12 weeks to comply.
40. In October 2021 Miss Z provided more recordings and video clips of noise she heard from the business. The Council installed noise recording equipment a second time at the flat. But when it went to recover recordings there was a fault meaning there was no usable data from these recordings. It offered to reinstall the equipment, but Miss Z declined considering the Council had ample evidence of the impact of the business on her.
41. After October 2021 and up to February 2022. Miss Z continued to provide regular evidence of disturbance to the Council through comments, recordings and so on. In January 2022 she reported the noise from a condenser unit running 24 hours a day had lessened. Although she said other noise from the plant and machinery serving the business continued to disturb her. The Council EHO told Miss Z that it would not take further action, considering that its previous recordings did not show other plant or equipment caused a statutory nuisance.
42. In July 2022 the EHO who dealt with this matter left his employment. Another officer covered the post temporarily and I spoke to her during this investigation. In October 2022 that officer offered to undertake further noise recording at the flat – to include an in-person visit as well as noise monitoring. At that time Miss Z was not staying in the flat but agreed in principle to another visit later.
43. Later that month Miss Z contacted the officer to advise of disturbance caused by late night activity associated with the business – including from plant and machinery running at night and disposal of glass. The officer agreed to liaise with the licensing service about these reports. Shortly after the business closed for a time, but when it re-opened in February 2023 Miss Z again reported noise from mechanical plant and equipment; as well as from patrons.
44. By March 2023 another EHO was in post to pick up any enquiries about the business. The service told me that to consider taking further action it would need to gather robust evidence of any disturbance caused by the business. And that while helpful, Miss Z’s recordings were not enough in that regard.
45. During my investigation I also spoke to a senior officer who reviewed the Council’s consideration of statutory nuisance in this case. He recognised the impact the business had on Miss Z. He noted the interruption in the Council’s investigation caused by the COVID-19 pandemic. He told me this had two significant impacts on the service. It received more complaints, but because of staff absence and redeployment there were fewer officers to respond to reports.
46. He also told me the service had sometimes struggled to access videos and recordings sent by Miss Z. This was because of restricted IT access to a file sharing service where she uploaded these. The senior officer also said that sometimes Miss Z’s correspondence did not go to the right service, as she was in contact with multiple council services.

Involvement of the planning service

February 2019 to July 2020

47. In February 2019 the Council planning service began an investigation to see if the business was in breach of the planning conditions attached to the 2014 planning permission covering Unit A.
48. In May 2019 the Council planning service sought legal advice on whether it could take enforcement action, noting the business now traded from the combined premises.
49. In July 2019 the Council received advice that it could, focusing on the failure of the business to comply with planning conditions attached to the planning permissions for Units A and B. However, the advice also asked planning officers to consider if the combined premises were a new planning unit.
50. In September 2019 the Council wrote to the business saying that “in planning terms [Unit A] and [Unit B] are not considered as one whole unit.” It asked the business agent to provide details of how it complied with conditions.
51. In October 2019 the business presented planning applications under Section 73 of the Town & Country Planning Act 1990 (‘the Section 73 applications’). It intended these would discharge and / or remove the planning conditions attached to Units A and B from the earlier planning permissions. The Council told the business it would not take planning enforcement action while considering those applications.
52. It was now the complainants first approached Mr X. He told me that he could not understand why the Council were treating Units A and B as separate planning units. He considered combining the units created a new planning unit. Any use of the combined unit therefore needed separate planning permission. He wrote to the Council for the complainants, pointing this out.
53. In November 2019 Mr X sent the Council an up-to-date noise assessment carried out by the complainants’ noise consultant. Mr X repeated his view that any use of the combined premises was unlawful as it did not have planning permission.
54. In response, in December 2019, Council planning officers sought further legal advice.
55. In January 2020, as part of its consideration of the Section 73 applications, the Council received comments from its EPU. These noted the business had fitted a noise limiter on the premises. But said – “the applicant cannot just rely on the use of a noise limiter in such circumstances to mitigate noise as this provides no control over patron noise which would require appropriate mitigation, in terms of acoustic insulation, being installed within the premises to ensure there is no transference of fugitive noise from the operation of the premises to [the complainants’ flat] and with a view to preventing the need to open doors and windows for cooling/air circulation the installation of air conditioning”.
56. In February 2020, Mr X again contacted the Council asking it to consider taking planning enforcement action against the business use of the combined premises. He chased a reply in March. He received no response to that correspondence.
57. In May 2020 the Council legal officer contacted the planning service to say they were closing their file. In response the planning service advised it had received no response to its request for legal advice in December 2019. Discussions followed, after which the Council agreed that it should consider the combined premises as a single planning unit.
58. So, in June 2020 the Council wrote to the business asking it to withdraw the Section 73 applications. Instead, it invited a planning application to cover the bar / restaurant use of the combined premises.
59. At the end of June 2020, in response to Mr X again chasing an update, the Council told him of its position.

July 2020 onward

60. In July 2020 the business withdrew the Section 73 applications and presented a new planning application to cover the combined premises. The Council planning enforcement team decided that it could no longer take enforcement action for any failure by the business to comply with conditions attached to planning permissions for Units A or B. This was because it now considered the combined premises one planning unit.
61. The Council invited Mrs Y to comment on the application and she made objections through Mr X. Her objections included citing concerns about the impact of noise from the premises, both from its use, the mechanical equipment and patrons using the business late at night.
62. In October 2020 the Council’s EPU made comments on the planning application. It noted the use of a noise limiter could help prevent noise from amplified music but that this was not a primary abatement measure. It said the business would need to provide acoustic insulation to effectively stop noise from music and patrons using the business.
63. In November 2020 internal emails went between the planning case officer and the EPU. The planning service considered it should not approve the planning application without the business providing a scheme for mitigating noise. It said, the alternative, of approving the development with conditions requiring a scheme would only delay any enforcement it might need to take.
64. In another exchange planning officers asked the EPU whether noise insulation referred to in Mrs Y’s 2015 planning application should provide insultation. The EPU commented that: “the flat insulation was for the existing use and the current scheme of insulation for a restaurant has clearly proved ineffective and now of course it’s not a restaurant, it’s a bar and potentially noisier”.
65. In January 2021 the business presented amended plans. In comments accompanying these the business said it had wanted to speak to the Council’s EPU but had not succeeded. An internal email recorded a member of the EPU spoke to a noise consultant working for the business shortly after this. They reported the consultant proposed a ‘light touch’ noise assessment. To which the Council said it advised the consultant to “do it properly” with a “full assessment of insulation requirements”. The Council recorded saying it would allow the business until March 2021 to present this.
66. In February 2021 Mr X wrote to the Council for his clients to complain the Council was not taking any action to limit the business while the planning application was under consideration. That same month the planning case officer expressed concern at the time taken by the business to provide various pieces of information, including a noise assessment and details of any proposed mitigation.
67. In the same month Mr X also made more comments on the planning application, saying the amended plans presented in January 2021 were inaccurate. He also forwarded another report from the complainants’ noise consultant. This focused on noise from plant and machinery. The consultant found the equipment was significantly louder than background levels, contrary to British Safety (BS) standards that it should operate at levels below background noise levels. The consultant noted a condenser unit closest to Ms Z’s bedroom probably needed to run for 24 hours a day.
68. In March 2021 the business presented further amended plans. The Council agreed it could have more time to present proposals for a noise mitigation scheme.
69. In May 2021 the Council’s EPU provided further comments on the planning application. It explained the relevant BS standard (BS4142) which provides a tool for measuring the impact of noise from plant and machinery on neighbouring properties. It also listed a series of measures the business should consider for limiting noise transference from the combined premises. It also gave guidance on relevant standards for ensuring control of odours from the premises. It said the service could not support planning permission.
70. In May 2021 the Council replied to Mr X’s correspondence. It recognised delays in processing the outstanding planning application. It said it must give clear guidance to the business on what information it needed to provide ‘from a noise nuisance point of view’. It said its EPU would aim to clarify the Council’s position with the business and would give it chance to respond. It accepted the ongoing use of the combined premises was unauthorised. But that it wanted, if possible, to regularise the use by granting planning permission subject to planning conditions. Otherwise, it would refuse planning permission.
71. In September 2021 the EPU commented for a third time on the planning application. It said the Council had not succeeded in recording noise from Ms Z’s flat. It said the ‘only alternative’ was for the applicant to present a robust technical assessment detailing the impact of noise from the premises and a scheme for mitigating that noise. Contemporaneous emails from the planning case officer confirm the Council did not want to add a noise mitigation scheme as a planning condition. Because it did not know “the noise could be effectively mitigated until a noise assessment was submitted”.
72. In October the Council received more comment from the business noise consultant. It alerted the EPU to this.
73. In February 2022 the EPU provided further comments to the planning service. It set out the potential impacts from the business on neighbouring properties, including the complainants’ flat. The comments said the service would no longer oppose the planning application subject to series of planning conditions including those covering noise from plant and machinery; amplified sound; operations and staff; patrons and odour.
74. The planning service considered these comments over the following months. Officers expressed concerns the proposed conditions did not all meet the tests of being “necessary, relevant, enforceable, precise and reasonable in all other respects as set out in planning guidance”.
75. In November 2022 the EPU provided a final set of comments. These now said the service could not reasonably object to the planning application subject to a series of conditions. These would cover noise from plant and machinery, hours of opening (limited to 11:00pm), noise from operations, submission of a noise management scheme and odour control scheme.
76. I spoke to officers from the EPU and planning service to understand why this advice changed. They told me:

• the applicant’s agent told the Council that they considered the business could achieve a specific condition that required a measurable outcome for noise from plant and machinery;
• the Council came to the view that many of the problems reported by the complainants related to the hours of operation of the business. So, a planning condition restricting opening hours would deal with this. For example, by limiting the time when patrons would be on the street outside;
• the Council was mindful of the licensing conditions covering the business, which also provided a route to manage its impact.

77. I also sought to understand why the Council had not determined the planning application by March 2023, when I spoke to its officers. Its officers told me:

• ideally, the EPU wanted robust noise monitoring to study the impact of noise from the business premises on the complainants’ flat. The onus was on the business to arrange for this. But the business did not agree. While negotiating there were times the business closed because of COVID-19 restrictions. Council officers also understood colleagues investigating statutory nuisance were not always given access to the flat by the complainants. So, this too hampered efforts to record the impact of noise on the flat;
• a key officer within the EPU had significant time off work during 2020 and 2021. This had sometimes delayed its responses to information presented by the business;
• the planning service recognised the impact of COVID-19 on businesses and extended the time for the business to provide it information during 2020 and 2021 in recognition of this;
• that the service considered the only planning enforcement tool open to it was a stop notice. Using this would have closed a local business. It considered this a last resort and so encouraged the applicant to present a planning proposal it could approve subject to conditions;
• that around April 2022 the business closed for a time for internal works. Officers wanted to check if these included any works which might impact on noise from the premises. It transpired the works were only decorative. But this further delayed its consideration of the application;
• that COVID-19 also impacted on the planning service due to impact on staffing levels and adapting to new ways of working; this was especially during 2020. The service also saw an increase in the number of household planning applications it had to deal with;
• that by the end of December 2022 the planning service understood the business might shortly cease trading from the combined premises.

78. As noted above, by March 2023 the business had ceased trading from the former Unit A. The Council anticipated it would not resume trading from there. The business had reinstalled the partition wall with the former Unit B. And shortly after it withdrew the planning application presented in July 2019 to cover the combined premises.
79. Subsequently in April 2023 the business presented a new planning application to trade from the former Unit B.

Our findings

The Ombudsman’s jurisdiction

80. I have considered first how far back in time our investigation should extend. I explained above that we will not usually investigate late complaints and how we define these.
81. I note that Mr X first made complaint on behalf of the complainants in February 2021. The Council gave its final reply to Mr X’s complaint in May 2021. He contacted us within 12 months, when the Council had still not decided the outstanding planning application for the combined premises, despite earlier indicating it would. We can therefore consider a complaint about events from February 2020 as ‘in time’.
82. However, clearly the complainants’ grievances with the activities of the business, and by consequence the Council’s response to those activities, extend further back in time. Any complaint about the Council’s actions before February 2020 is late. But we have discretion to investigate if we consider there are good reasons to do so.
83. I understand Mrs Y first raised objections to the activities of the business, even before it merged Units A and B and the use of those. However, I consider this change of circumstances in April 2017 marked a watershed, creating a new business and the combined premises. I will not investigate earlier events given the significant passage of time. There are reasons for the law that limits our ability to investigate late complaints. Memories fade, organisations do not keep all records and key personnel leave their posts. I do not consider I could safely come to any findings on the Council’s actions before that time.
84. I have therefore considered whether investigation should begin from April 2017, February 2020 or some point between. I decided not to use February 2020 as a start date, because at that time Mr X had helped the complainants for several months, encouraging the Council to regularise the planning status of the business. His actions in February 2020 were a continuation of those begun in October 2019. Our guidance is clear that we can reasonably extend an investigation back in time if a complainant (or their representative) satisfies us that they understood a council was acting in response to their contacts. And that they did not let the matter complained about rest for more than a few months. I consider that applies to events throughout the whole time of Mr X’s involvement in this case.
85. In turn this leads me to consider why Mrs Y approached Mr X at that point. From late 2018 onward Mrs Y had focused her attention on the licence conditions attached to the business premises. This led to the licence review hearing in April 2019. By October, subsequent to its recommendations, the environmental health service first became involved.
86. I consider it is fair to investigate the role of the environmental health and licensing services alongside that of the planning service from October 2019. This coincides with Mr X’s involvement. Also, there has been simultaneous consideration of the impacts of the business on Mrs Y’s flat by all services from this time.
87. However, I do not consider I should investigate the licensing review in April 2019. This is because it came to a clear decision, communicated and understood by Mrs Y at the time. While I have no doubt the outcome did not go far as she would want, she could have made a complaint about that, as a discreet issue at that time. I will not therefore investigate the actions of the licensing service pre-October 2019.
88. But I will extend the investigation into the planning service further back in time. This is because the complainants are not experts on planning matters. It was only after they consulted Mr X in October 2019, they learnt of the fundamental problem in how the Council planning service approached the use of the combined premises. It was only after his involvement they could complain to the Council about its decision not to treat the combined premises as a new planning unit. It would be wrong to penalise the complainants for the Council’s failure to consider this matter earlier.
89. I find the Council planning service knew, or should have known, of the combined premises from April 2017. So, in consideration of this matter alone, this is the start date for my investigation.

On the substance of the complaint

90. First, I have considered how the planning service responded when it learnt the business had combined Units A and B and traded from those combined premises. There are no records to show what, if any, consideration the Council planning service gave to this matter between April 2017 and July 2019. But as I noted above, records show the Council knew of the combined premises from the earlier date. Failing to act on that information was a fault.
91. Between February 2019 and June 2020, the Council considered using planning enforcement powers. It did so by considering the separate planning permissions attached to Units A and B. This led it to encourage the business to present Section 73 applications seeking the discharge or removal of conditions attached to those permissions.
92. As the Council later came to recognise, this was a fundamentally flawed approach. I recognise there is a long history of sometimes complex case law that focuses on what is a ‘planning unit’. So, this is not always an easy question for a council to answer. In this case the business removed partition walls which previously separated two distinct businesses. From the combined premises it then undertook a single business activity – a combined bar and restaurant. I consider the evidence for the creation of a single planning unit was always clear and the Council should have ensured it properly addressed this. But it did not keep a record of why it came to the view in September 2019 it still regarded the business as trading from two planning units. It also took several months to revisit its position after challenge from Mr X.
93. While eventually the Council realised its error, I am unconvinced this would have happened if not for Mr X’s involvement and persistence, whose correspondence regularly went unanswered. I note the impact of the pandemic from late March 2020. However, I do not consider this provides for mitigation given the planning enforcement file had been open for 13 months at that time.
94. It was fault therefore the Council took so long to decide the business had created a new single planning unit.
95. Next, I have considered the Council’s handling of the planning application presented in July 2020 which sought permission for the bar / restaurant use of the combined premises. It did not decide that application for over two and a half years. Eventually its fate became overtaken by events when the business stopped trading from that half of the premises formerly ‘Unit A’, reinstating the two former separate planning units.
96. This delay was exceptional. I appreciate there are many reasons a planning application may become delayed. But I find there was only one reason which underpinned the delay here. That related to the impact of the business on the complainants’ flat. Specifically, the impact from its opening hours; the noise created inside the premises; and the noise and odours associated with its operations, such as the disposal of bottles or people congregating on the street outside. The Council needed to satisfy itself that any approval of the application would limit these impacts to levels it considered acceptable.
97. While some of these issues could be a matter of simple conditions, the question of how to control noise entering the complainants’ flat was not. The Council considered the business should provide a robust noise impact survey based on its then current operations. This would contain proposals for how to limit noise between the premises and the complainants’ flat. If the business failed to provide this, then the Council had a choice. Either approve the application and condition such a survey post-decision. Or refuse the application.
98. The records show clearly the Council leant towards the later option. On three occasions its EPU said it could not support the application without a noise management plan. And the planning service supported that position. It reiterated more than once that it did not consider it satisfactory to condition a planning approval to require a noise management plan.
99. Yet rather than follow this through, the Council allowed drift and delay. I can understand the Council wanted to allow the business an extended period of time because of the impact of the pandemic. Between March 2020 and April 2021 restrictions introduced because of the COVID-19 pandemic led to regular closure of the business, or trade at reduced levels. Also, the Council planning service had to recognise the impact of a delay in its officers from the EPU speaking to the business. But against this I must balance that at no point is there evidence the business ever intended to provide a noise assessment survey in terms acceptable to the Council. The Council never received a promise of what it wanted therefore.
100. In which case, I cannot see why the Council waited until February 2022 to change its approach. And it should not have taken another nine months for this change of approach to reveal itself in the final EPU advice given in November of that year.
101. I recognise the Council faced challenges while the application was under its consideration which were sometimes out of its direct control. I appreciate the significant impact the pandemic had also on its own services, including the EPU, its environmental health service in general and its planning service. But we still consider such service failings a fault. I also do not see these unintended service failings as being the primary cause of the Council’s failure to decide this planning application.
102. I also do not find the complainants to blame for the delay. I can see there were times when the Council was due to put noise recording equipment in their flat but could not do so because of issues with access. However, I cannot see there was ever a noise assessment proposed or arranged for determining the planning application. The instances referred to related to the Council’s consideration of statutory nuisance.
103. In summary therefore the failure of the Council to decide the July 2020 planning application in a timely manner was fault.
104. I have considered next the role of the Council’s statutory nuisance service in events.
105. I note the Council’s first investigation lapsed around March 2020 because of the COVID-19 pandemic. I can find no fault in it suspending the investigation as clearly in circumstances where the business ceased trading temporarily, there could be no assessment of its impact on Miss Z. But I find there was no attempt to revive that investigation until May 2021 – a gap of 14 months. I cannot see that meanwhile the service contacted Miss Z to advise if it had closed its investigation or invite her to contact it again when the business resumed trading. That was a fault.
106. In the meantime, in February 2021, Mr X had contacted the planning service because it was considering the impact of the business on the flat, as part of its wider consideration of the planning application. He provided a noise consultancy report commissioned by Mrs Y. The planning service should have alerted the environmental health service to this as well as the licensing service. Failing to do so was a fault. Because both the statutory nuisance service and the licensing service could potentially take enforcement action, notwithstanding the outstanding planning application.
107. After the statutory nuisance investigation resumed in May 2021 there was a four-month gap before the Council came to a view on whether there was such nuisance. I find some of this attributable to Miss Z who could not accept noise recording equipment before July. But it took around a month longer than it should for the service to then analyse those recordings.
108. When it did so, I find the Council explained to Miss Z for why it considered the only statutory nuisance arose from the plant and machinery serving the business. It took appropriate enforcement action – the service of a noise abatement notice.
109. But I have concerns about what followed. The Council found the business’ actions in making some changes to a condenser, removed the statutory nuisance. But clearly Miss Z continued to find noise from plant and equipment a source of disturbance to her. I can understand why the Council considered it had insufficient evidence to consider escalating action beyond the abatement notice. But I cannot understand why it considered it had enough evidence to justify ending its investigation into noise from plant and machinery.
110. The Council came to this view without making any attempt to monitor again the impact of that equipment. Just because a noise has become quieter or less intrusive, does not mean it has stopped being a statutory nuisance. It knew Miss Z continued to find the noise from plant and machinery intrusive. It knew the business had not commissioned an expert report as stated in the abatement notice. There was insufficient evidence for the Council to close that part of the investigation. This was a fault.
111. This also left open its investigation of the other noises sources which could be a potential statutory nuisance (noise on the street could not be). While the Council had considered the evidence for this insufficient in July 2021, it left open the possibility that noise was at that level. So, it made further attempts to monitor this noise in October 2021. These failed because of issues with the equipment. I will not find fault with this. I also note that initially Miss Z declined the offer of reinstallation of the equipment.
112. However, it is not clear to me why the Council did not make further effort to try and investigate this matter. It took 12 months for the Council to re-open communication with Miss Z around its statutory nuisance powers, even though she kept making clear to the Council the disruption she experienced. The Council has pointed out it sometimes had difficulties accessing material provided by Miss Z, who did not use the standard methods of approach recommended on its website. I accept that. But even so, the delay in the Council re-opening contact with her was a fault.
113. I make no criticism of the efforts made since October 2022 to re-engage with Miss Z to consider potential statutory nuisance. Although, I consider more could have been done throughout the service’s involvement to co-ordinate more with the licensing service.
114. Because evidently many of Miss Z’s complaints about the impact of the bar / restaurant after October 2019 engaged directly with licensing conditions designed to prevent the business having an unacceptably adverse impact on her. In particular I note the clause in the licence for the combined premises which specifically restricted how much noise from the premises should have been heard in an adjacent building. Also, those around disposal of glass and from plant and machinery.
115. There is evidence of periodic inspections of the premises to check adherence to certain licensing conditions. I also recognise the service oversaw the fitting of a noise limiting device which reduced the volume of amplified music produced by the premises. But I found nothing to suggest the Council sought to systematically consider if the business breached these clauses. This included after it recognised the noise limiter did not prevent Miss Z hearing songs and lyrics played from within the business premises – something the limiter should have prevented. This was a fault.
116. The failings by the licensing service here are part of a pattern of a lack of a joined-up approach between the different service areas involved in this case. All officers I spoke to impressed on me this was a complex case, and I can readily see this was the case. But such complex cases make the need for effective co-ordination more important. Different services all had some idea of what other services were doing. But they did not draw up an action plan to thoroughly investigate the complainants’ concerns about the impact of this business. This was a fault.
117. Finally, I also noted some poor record keeping practice in this case. I do not consider the notes of any of the services involved in this investigation have been comprehensive. After speaking to officers, I did not consider I had a full record of all liaison or discussion between the Council and the business at the crux of this complaint. This was a fault.

The injustice caused to the complainants

118. Because of the Council delay in considering the planning implications of the single premises, over three years elapsed before it invited the business to make the proper planning application. Then, because the Council delayed in deciding that planning application, nearly another three years elapsed. So, the Council allowed a business to trade without any lawful planning permission for nearly six years.
119. It does not follow that all unauthorised uses will have a negative impact on a neighbour. Nor does it follow that because someone experiences a negative impact from a neighbouring business, the Council necessarily has powers to prevent this. All its enforcement regimes, whether connected to its planning service, statutory nuisance or premises licensing require a degree of subjective judgement about when an impact becomes unacceptable.
120. I note the Council never came to a definitive view the business caused Miss Z a statutory nuisance through its activities. Nor did it ever come to a view that it was acting in breach of licensing conditions designed to protect the amenity of those living in the flat. Nor did it ever require the business to produce a noise assessment that would have provided clear measurable limits on an ‘acceptable’ level of noise that could transfer from the business to the flat. However, the only reason it did not come to a view on these matters was because of the faults I outlined above.
121. The only definitive ‘nuisance’ judgement it came to was in response to the plant and machinery serving the business. Which it found in September 2021 caused a statutory nuisance to Miss Z. Noise from this source lessened from January 2022 but did not cease. The machinery had run for several years at this point and throughout the duration of the events I have investigated.
122. However, despite the lack of clear judgements reached by the Council, there are still several sources of evidence to find the business had a significant negative impact on the complainants. First due to the noise from plant and machinery leading to service of a noise abatement notice, as discussed. Second, in the planning records there are the reports provided by the complainants’ noise consultant which are robust. Third, in the repeated concerns the EPU expressed saying the business needed a noise management scheme to cover its activities. Fourth, in the proposed planning conditions the Council would have imposed in addition any noise management plan. For example, covering the hours of the business, disposal of glass and so on. Fifth, in the comments of licensing officers concerned at the noise heard by Miss Z after the fitting of the noise limiting device.
123. Further, it flows logically from my findings above that but for its faults, the Council could have acted to prevent some of this disturbance. I accept that even in a best case scenario it may have taken the Council several months to take action to control these negative impacts. And that any attempt to impose planning controls or take enforcement action would carry rights of appeal, which could have resulted in the impacts continuing beyond that.
124. But even after allowing for this, I find the Council’s consideration of the planning implications of the combined premises should have begun well before the complainants reached out to Mr X in October 2019. So, in making recommendations in this case I consider we should consider the negative impacts on Miss Z from October 2019 onward. In addition, I recognise both complainants will have a legitimate sense of outrage that decisions on this case were allowed to drift for as long as they did. And that action from the planning service to address the activities of the business should have begun in April 2017.
125. I consider a further injustice to the complainants in this case are some of the professional fees they have incurred. We do not consider that complainants need use a professional adviser to make a complaint, whether that is to the Council or this office. However, we can consider if a complainant has reasonably engaged the services of a professional adviser to help resolve a problem that arises from a fault by the Council.
126. That is the case here. The complainants went to Mr X for advice about the planning status of the business which caused them disturbance. I reiterate that I consider it is only because of Mr X’s involvement the Council required the business to make a planning application to cover its use of the combined premises. And while engaged in that correspondence Mr X inevitably also had to engage the Council on the Section 73 applications. I consider all of his costs the complainants incurred between October 2019 and June 2020 form part of their injustice.
127. Further, that they should also receive some contribution towards those costs incurred after July 2020 relevant to the Council’s handling of the planning application to cover the use of the combined premises. While I do not consider it was necessary for the complainants to use Mr X to make objections to the scheme, their costs increased because of the delay which followed. As inevitably Mr X became drawn into correspondence about the Council’s failure to decide the application.

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Agreed action

128. The Council has accepted the findings set out above. It has agreed to take the following actions to provide a personal remedy to Mrs Y and Miss Z and to improve its services. It has agreed to provide us with evidence in due course to show it has carried out these actions.

Personal remedy

129. To remedy the injustice caused to Mrs Y and Miss Z, the Council will, within 20 working days of this decision:
1. provide an apology to them both in with the Ombudsman’s published guidance on remedies section 3.2 Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment to Miss Y £1000 in recognition of the outrage and distress caused by its actions since April 2017;
3. make a symbolic payment to Miss Z £6500 in recognition of the negative impact of the business on her living conditions; I explain the basis for this calculation below;
4. make a symbolic payment of £8500 to either Mrs Y or Miss Z (or split between them as they prefer) in recognition of the costs they incurred using Mr X’s services for the period October 2019 to July 2020; this includes £1000 towards the cost of his services from July 2020 onward as a result of its fault.
5. appoint a senior officer to co-ordinate contacts with the complainants and Mr X moving forward – in line with advice contained below.
130. I have calculated the payment at b) by first considering the harm caused to Miss Z from the negative impacts of the business merits a symbolic payment of £250 a month. I calculate that from October 2019 to March 2023 is 42 months which would give a figure of £10,500. However, from this I consider it reasonable to deduct an equivalent of 16 months (£4000). This is to reflect around 10 months when the business will not have had a negative impact because of closures arising from the pandemic. It also takes account that to a limited degree, Miss Z may have done more to facilitate the Council’s investigation of statutory nuisance. I deduct six months for this.
131. The action agreed at e) above takes account the business is now running only from the former ‘Unit B’. I can take no view on the Council’s handling of the latest planning application presented by the business to cover this use given how recently it received this (with the complainants’ objections). I can also take no view on whether the business may cause any statutory nuisance to Miss Z or be operating in breach of its licensing conditions at this time.
132. However, it is right that I recognise the complainants still have concerns about the impact of the business on the flat (something the Council will be aware of from the objections to the latest planning application). It is also right that I recognise that they will not want to experience further drift and delay by the Council in deciding the latest planning application. And this does not preclude the Council continuing to consider if the business causes a statutory nuisance to them or is breaching any of its licensing conditions.
133. The agreed action at e) therefore recognises oversight is needed, preferably from someone not previously familiar with the case. That officer should collate the position of all the services investigated in this case – the planning service, environmental health statutory nuisance team and licensing. This will be to ascertain realistic timescales for determination of the current planning application and what investigation it proposes to undertake under those other regimes. This position should be communicated to the complainants along with any steps the Council needs them to take to co-operate with investigations. The Council should commit to keeping the complainants updated on a specific regular basis – I suggest four weekly – to confirm the progress being made by each service against those benchmarks it has set itself.

Service improvements

134. The Council has also agreed to learn wider lessons from this complaint. Within two months of a decision on this complaint draw up an action plan which will contain specific and measurable outcomes. It will say when the Council will deliver these by and who is accountable for that delivery. The action plan will need, as a minimum, to include consideration of the following:

• of how the Council can avoid a situation where it becomes aware of a business possibly having created a new planning unit, but no action is taken to consider this;
• of how the Council can avoid requests for legal advice delaying decisions on planning enforcement investigations for more than a month, or two months in more complex cases;
• of how the Council can avoid planning applications not being decided for more than six months where there is a single issue which is delaying that decision;
• of its expectations of the planning service when alerted to comments or evidence that may give rise to an investigation of statutory nuisance or potential breach of licenses;
• of how the Council can better capture discussions and action agreed when multiple services are engaged with a business causing disturbance to neighbours; to ensure records are kept and appropriate messages communicated to those impacted by the business;
• of how in the future it might better co-ordinate investigations into disturbance from businesses that engage multiple service;
• of how the Council can better track open investigations into potential statutory nuisance to ensure that those reporting such matters are aware of the status of the case; at what point should the Council close investigations and inform those reporting disturbance if no contact is made.

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Final decision

135. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs Y and Miss Z. The Council accepts this finding and has agreed action that I consider will remedy their injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman