Summary: Mr X complained about the Council’s investigation of his complaint about noise from a food and music venue. There was no fault in the Council’s investigation of the complaint. The remedy offered by the Council during its complaints procedure for the delay in responding to the official complaint remedied the injustice.

The complaint

1. Mr X complains the Council failed to take sufficient action to deal with noise nuisance from a food and music venue. Mr X considers that he has lived with noise nuisance for longer than necessary which has caused a significant impact on his mental health and prevented him from living at his property at times.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Key facts

6. Mr X lives in a town centre flat, close to a music and food venue which opened after he moved in.
7. Mr X first complained to the Council about the noise on 31 December 2023 and completed weekly diaries of the noise. Mr X provided further information on 11 January, but the complaint was put on hold as the venue closed until the end of January 2024.
8. The venue had a licence, but the planning and listed building applications had not been decided in January 2024. A noise impact report was put in as part of the planning process.
9. Mr X sent in noise observation records at the beginning of March 2024. Retrospective planning permission was granted subject to condition that:
• Use of the development should be according to the Noise Management Plan.
• Music from normal operations was only permitted between Friday 5pm till midnight, Saturday 12pm till midnight and on Sundays between 12pm till 10pm.
10. The Council visited on 15 March and did not witness noise nuisance. Mr X says officers did not visit his property. Council officers met with the venue staff who agreed to undertake their own noise monitoring and send it to the Council. The Council received noise monitoring records a week later but said they needed more detail. Mr X emailed the Council on 28 April to say the noise was at a level he could live with at that time. Mr X says that this lower volume level lasted just one weekend.
11. Mr X complained to the Council on 5 May that the venue breached a planning condition as it opened outside the allowed hours. Mr X said he had contacted the venue owner about the noise, who had turned it down slightly. Mr X sent a noise recording to the Council. Mr X said he did not want the venue owners to monitor noise in his home. The Council met with the venue to advise them they intended to visit to observe the noise at Mr X’s home.
12. Mr X reported that there was noise outside the allowed hours on 25 May 2024 and his witness observation records reported loud noise on 26 May.
13. The Council visited Mr X’s home on 8 June 2024 to witness the noise. Mr X said the officer said the noise ‘would do her head in’. The Council said ‘officers did observe some noise from the venue with both windows open and closed. The volume varied. It became clear at this visit the noise could not be heard at ground level but could be heard in Mr X’s flat’.
14. The Council emailed the venue, who told them the settings on the amplifiers were set far too high and they would be reduced.
15. The Council wrote to venue on 13 June. The Council also organised two meetings to try to mediate with the venue to reduce the disturbance.
16. The Council visited Mr X’s home on 29 June and observed no noise.
17. The Council emailed Mr X on 3 July. It said that venue staff had monitored at ground level and the Council had asked that venue staff to regularly monitor the noise at higher levels in the building. The Council officer said ‘while I appreciate that when I visited your property with another officer we did observe noise nuisance, we did not feel it was appropriate to issue an abatement noise for the reasons stated above. While the other officer said ‘this would do my head in’ this didn’t in turn mean she thought the noise was deemed a statutory nuisance, and from that one visit, I can confirm we did not feel were able to determine this’.
18. The Council met with the venue staff and told Mr X this. Mr X said he would be happy to have noise monitoring equipment installed in his flat.
19. On 17 July the Council responded to Mr X’s official complaint. It said ‘the first steps, in accordance with its enforcement policy, was to try to resolve matters informally. That after noise was heard in Mr X’s property on 8 June the Council would look to mediate with venue staff to agree a level amenable to all parties’. The stage 2 response to Mr X’s complaint said it did not uphold Mr X’s complaints about delay, it explained the Council continued to liaise with the venue and had said there may be visits in September. The Council said Mr X told them at the beginning of September that he did not wish to engage further with the Council and Mr X made no further complaints. Mr X says he did not continue to complain as the venue was due to close in December.
20. In its final complaint response the Council said ‘while it appreciated Mr X was frustrated with the situation, officers have to observe the noise to take further action…. Going forward if you experience noise which you consider to be at an unreasonable level, if you provide logs to the licensing team, they will be reviewed to determine whether any further visits or action is necessary.’
21. The Council offered Mr X a payment of £50 for the delay in responding to his stage 2 complaint.
22. The planning enforcement department said on 4 November that an officer gave the venue a warning as it accepted that one breach of the hours of operation condition had occurred. No further complaints had been received so the Council closed the file.

My analysis

23. The Council’s enforcement policy says that ‘officers will generally seek an informal resolution to cases of non-compliance except where formal enforcement action is required (e.g. serious issues relating to Health and Safety).
24. I can see from the Council’s records that officers met regularly with the venue staff after it received Mr X’s complaint. As a result of these visits the venue installed noise limiting devices on all amplifiers and carried out regular monitoring of noise levels away from the premises. The venue also employed a noise consultant. While Mr X complains about delay, I cannot see any evidence of this. The Council were working with the venue to resolve the problem and I cannot see evidence of delay, the Council did not leave significant periods of time between actions.
25. It is clear the Council, the venue and Mr X agree there was noise audible in his flat. The Council has said that ‘the noise was not considered to be a statutory nuisance, based on volume and duration of the noise. Officers were able to converse normally, without raising their voice. The noise did not continue for a period which was considered unreasonable on this occasion and officers would not usually deem noise a statutory nuisance based on one visit’.
26. The Council has explained that it offered a further monitoring visit in September, which Mr X declined. Mr X complains about the length of time between the June and proposed September monitoring visit.
27. Because of the June visit the Council found out for the first time that the noise was only audible at a higher level (in Mr X’s flat) but not at ground level. The Council said ‘we felt it appropriate to allow the premises the opportunity to put measures in place to mitigate the noise at this level’. I find no fault on this point. There is no evidence of delay, in fact there is evidence of considerable correspondence between the Council and the venue to try to resolve the issue after the new information in June.
28. Mr X says an officer told him the noise would ‘do her head in’ and so this shows it was a statutory noise nuisance. The officer does not deny making these remarks, but as the council points out, this does not mean the noise is a statutory nuisance. I find no fault on this point.
29. Mr X also complains the Council did not put noise recording equipment into his home. The Council has said that given the distance from the noise source, recordings would not be useful as the source of the noise could not be proven from a tape recording. I find no fault on this point.
30. Mr X’s main complaint is the Council did not quickly take formal action by serving an abatement notice after witnessing noise in June 2024. It is clear the Council has explained to Mr X that officers witnessed noise but did not consider it to be a statutory noise nuisance, but that Mr X does not accept the explanation. I do not consider this to be fault. I can understand that Mr X feels that if more officer visits had been carried out, the Council could have gathered more evidence. Instead, the Council worked with the venue so it could carry out it's own monitoring. This was a decision the Council was entitled to take and it did offer Mr X a further monitoring visit after the informal action to find out whether it had reduced the noise. There was also no noise witnessed during a second visit in June. Once Mr X said he did not wish for further contact with the Council, it took no further action. But, the Council has said that if Mr X has further noise complaints, the Council will respond.
31. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. I have found no fault in the Council’s actions, but I recognise that Mr X feels the Council could have acted differently.
32. The Council has said there was delay in responding to Mr X’s stage 2 complaint and that this was fault. It remedied the injustice from this by offering a payment of £50 to Mr X, which I consider in line with our remedies guidance. Mr X has not accepted the payment and the Council could consider remaking its original offer.

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Decision

33. I have completed my investigation and I find fault causing injustice. The Council has already agreed actions to remedy the injustice before the complaint was considered by the Ombudsman.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman