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Wirral Metropolitan Borough Council (20 012 745)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 07 Sep 2021

The Ombudsman's final decision:

Summary: Mr and Mrs C say the Council is at fault for failures, both in its planning and environmental health departments, concerning a pub next door to their house. They say the Council made errors when approving the planning application to install the pub’s new kitchen and has since failed to take action to prevent the pub making noise and odours. They say this has caused them injustice because the pub disturbs their enjoyment of their property. The Council was not at fault. It investigated Mr and Mrs C’s concerns and continues to do so.

The complaint

  1. The complainants, who I have called Mr and Mrs C, say the Council is at fault for various faults concerning a pub (‘the pub’) next door to their house. They say the Council:
      1. made ‘major mistakes’ when considering the pub’s planning application in 2015
      2. agreed to limit noise from the pub’s kitchen fan but never did so,
      3. had an uncaring attitude,
      4. failed to provide accurate information about its contacts with the pub,
      5. instructed Mr and Mrs C to get a noise survey which was ‘a waste of time and money’,
      6. ignored their complaints about odours; and
      7. failed to make the pub keep its kitchen door closed.
  2. Mr and Mrs C say they have suffered injustice because the noise from the pub fan and the smells from the kitchen are distressing and annoying.

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What I have investigated

  1. Mr and Mrs C says the Council was at fault for errors it made during the planning process in 2015? When the new owner of the pub (‘Pub Company 1’) applied for planning permission to install a new kitchen. The law says we can only look into ‘late complaints’ if there are ‘good reasons’ to do so.
  2. ‘A good reason’ is not defined in law but the Ombudsman’s guidance says it is not a good reason that a complainant has not heard of the Ombudsman. Good reasons include the fact that a complainant has only recently found out about the alleged fault or if the complainant had been in constant contact about the matter with the pub for over a year.
  3. Mr C complained to the Council about alleged failures in the planning process in 2017. The Council provided a full explanation of its actions during the planning process then and Mr C did not come to the Ombudsman at that point. He cannot, therefore, raise the issue with us four years later without good reason. Mr and Mrs C say they had health concerns during the period but, since making the 2017 complaint, they were able to make a further planning application to the Council. I do not find, therefore, that there is sufficient reason to exercise my discretion.
  4. In any event, the Council seems to have made a valid decision in 2016 and, even if I were to find it at fault for errors at the planning stage, the Ombudsman has no power to make the pub change the fan in its kitchen. It is not, therefore, proportionate or necessary for me to investigate this part of their complaint.
  5. However, Mr C has made fairly frequent complaints about noise and odours from the pub kitchen since 2016 to the present day and I accept, therefore, that this is an ongoing issue. Therefore, I have decided to use my discretion to look into this part of Mr and Mrs C’s complaint back to its beginning in 2016.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’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

  1. I spoke to Mr C. I considered the information he had sent to the Ombudsman. Using this information, I wrote an enquiry letter to the Council. I then considered the information the Council provided alongside that provided by Mr C. I applied any relevant law and guidance and wrote a draft decision.
  2. Mr and Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Noise nuisance

  1. Complaints about noise are governed by the Environmental Protection Act 1990. On receiving a complaint about a noise nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance’. To do so, it must either:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
    • Injure health or be likely to injure health.
  2. The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. A council officer will therefore visit to make an independent judgment as to whether the noise amounts to a statutory nuisance.
  3. Many factors will affect the officer’s decision. They will consider the time and duration of any noise or smell as well as its severity. They may ask complainants to keep a noise diary to help assess the impact on them. Councils may use sound measuring equipment though there is no statutory requirement to do so.
  4. If a council decides a noise or odour amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop. If it decides that the noise made does not amount to a statutory nuisance it can continue to use informal intervention to try to solve the problem.

What happened

  1. In 2015, the pub next door to Mr and Mrs C’s house was bought by a pub chain (‘Pub company 1’). It applied for permission to install a commercial kitchen. Permission was granted.
  2. Shortly thereafter, Mr C began to complain about noise from the kitchen extractor fan which, he said, was unbearably loud.
  3. A Council environmental health officer visited Pub company 1 in late 2016. He found that the fan was too noisy when on levels 9 and 10 (of t10) but acceptable at lower levels. The officer reached an informal agreement with the manager that the fan should not be turned up above level 8.
  4. Mr C continued to complain about noise from the fan and, from time to time, about smells from the kitchen. In 2017, he made a formal complaint to the Council about a lack of action against Pub Company 1. The Council responded that it had made ‘numerous efforts’ to solve the problem. It had required the pub to build a fence around the fan extractor unit and reached an agreement to limit motor speed.
  5. The Council explained the difficulties in proving noise or smells were a nuisance and asked him to ‘complete a log to assist officer in determining whether patterns emerge and also provide information on the frequency and duration of the occurrences’. The Council says that Mr C did not do so until 2020.
  6. In late 2017, Mr C applied for planning permission to turn an existing outbuilding, which was closer to the pub than his house, into a dwelling. The Council, aware that Mr C had concerns about noise from the pub, required him to employ a noise consultant to write a report on whether the proposed development would be subject to excessive noise.
  7. The consultants wrote a report which applied the British Standard Guidance on Sound Insulation and Noise Reduction for Buildings. On a site visit, they found the noise from the fan was ‘faintly audible’ when traffic noise dropped and noise within the house was in the ‘desirable’ range. They left microphones overnight in the garden. These found that the sound level in the garden was ‘acceptable’.
  8. The report recommended that Mr and Mrs C should install double glazing in the new building and build an acoustic fence along the boundary with the pub to ensure that there would be no unacceptable noise nuisance.
  9. On receipt of this report, the Council’s environmental health department said it had no objection to the application providing Mr and Mrs C built the acoustic fence. Permission was granted in early 2018. The Council says Mr and Mrs C installed double glazing but it believes they have not yet erected the fence.
  10. In late 2019, Pub Company 1 sold the pub to another pub chain (‘Pub Company 2’). Shortly thereafter, COVID-19 struck the country and the pub was closed for some time.
  11. The pub reopened in 2020 under new management. Very soon, Mr C and another resident, Mr N began to complain about noise from the pub and, in particular about the fan. Mr C has told me it is not always at unacceptable levels, he says. When it is at level 8, it is acceptable. It is only when it is on full that the noise is excessive. He also says food smells are unpleasant when the kitchen door is left open. He says the pub should install a door closer so that it always swings shut.
  12. Since July 2020, Mr C and Mr N have made numerous complaints about the fan. Council enforcement officers have visited the pub on 5 occasions and have made numerous phone calls to directors and managers. The Council told the new management about the previous agreement to keep the fan at level 8 and asked them to stick to it. The new management originally said it would do so.
  13. Mr C told the Council in July 2020 that he would complain to the Ombudsman as he was not happy with previous investigations. He complained about smells and odours. He said he was unhappy that the environmental health team would not deal with a planning breach. A planning officer confirmed that the environmental health team could not deal with planning matters and asked Mr C to keep a log of noise and smell incidents. The Council repeated this request in January 2021.
  14. The pub’s management has recently said it will keep the fans at 8 when it can but, if it did so when the pub was busy, this would put the health and safety of kitchen staff at risk. They have recently agreed to consult a ventilation engineer.
  15. In winter 2020-2021, many of the Council’s environmental health officers were reassigned to COVID related duties. This affected the Council’s ability to deal with noise nuisance complaints.
  16. In December 2020, an environmental health officer visited the pub and took noise measurements from Mr N’s garden. He found that, when the fan was at level 8, the noise was hardly noticeable. When it was at full blast, there was ‘more noise’.
  17. The officer wrote to the pub’s manager who agreed to limit the noise from the fan and not to use it at night.
  18. In July 2020, Mr C returned some noise diary sheets to the Council.

Was there fault causing injustice?

Council agreed fan noise level with Pub Company 1 but never enforced it

  1. The Council can only take formal enforcement action if it is satisfied that there is a statutory nuisance. It visited the pub on several occasions to assess the noise and decided it did not reach the threshold for a statutory nuisance. There is no evidence of fault in this decision and it is one the Council is entitled to make.
  2. However, the Council did take informal action and acted on complaints. Officers made numerous visits since 2016 when an officer first brokered the agreement with Pub Company 1 that it would keep the fan at level 8. Unfortunately, there is a high turnover of staff in the entertainment industry and there are, the records show, frequently new managers who are not aware of the arrangement. The Council arranged for a mark to be put on the dial to show the maximum level.
  3. Mr C says the Council failed to take action to enforce its agreement with Pub Company 1 against Pub Company 2 after it bought the pub in 2019.
  4. The Council says, and I accept, that it could not do so. The agreement was informal and therefore could not be enforced and, also, Pub Company 2 was not a party to the agreement. The Council did, though, tell Pub Company 2 about the agreement and ask them to keep the level at 8 or lower.
  5. The Council has also, the records show, made more than five visits to the pub in 2020 and 2021. An officer has listened to the fan at various levels and in various locations and made numerous phone calls to management and directors of Pub Company 2. As a result, Pub Company 2 has arranged to ask a ventilation consultant to look at the fan.
  6. Mr C says he believes that the pub’s extractor fan system does not comply with industry specifications. The Council has said it believes it does I am not therefore able to uphold this part of Mr and Mrs C’s complaint. In any event, this is not the basis of Mr C’s complaint. He says the system causes excessive noise. It is not, therefore, relevant whether the fan complies with standards which are not, in any event, mandatory.

The Council had an uncaring attitude

  1. There is no evidence that the Council had an uncaring attitude. It has investigated allegations of noise and smells diligently and attempted to solve the problem.

Failure to provide accurate information about contacts with pub

  1. I have seen no evidence that the Council provided any misleading information.

Noise survey

  1. I have read the noise survey which appears to be thorough and professional.

Council ignored complaints about odours

  1. The Council has made it clear that Mr C must keep a diary of odours. An officer told him that he could not say that there had been any odours because he had never witnessed any on his visits to the pub.

Failed to make pub keep its kitchen door closed.

  1. Council officers have visited the pub on numerous occasions and has not witnessed any odours.

Summary

  1. The Council has investigated, and continues to investigate, Mr C’s complaints about noise and odours. It is currently in correspondence with Pub Company 2 about Mr and Mrs C’s (and Mr and Mrs N’s) concerns. It is not, therefore, at fault.

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Final decision

  1. I have found the Council was not at fault and have closed my investigation.

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Parts of the complaint that I did not investigate

  1. I did not investigate Mr C’s allegations about fault in the planning process for the reasons set out above.

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Investigator's decision on behalf of the Ombudsman

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