St Albans City Council (18 015 546)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 16 Aug 2019

The Ombudsman's final decision:

Summary: Mr X complains on behalf of Mr Y about the Council’s failure to take appropriate action in response to concerns about planning, noise and licensing relating to a nearby restaurant. The Ombudsman does not uphold the complaint. Whilst Mr X disagrees with the merits of the Council’s decisions, there is no evidence of procedural fault which would allow us to question those decisions.

The complaint

  1. Mr X, who represents a complaint on behalf of Mr Y, raises concerns about the Council's actions in relation to a nearby restaurant. In particular, he complains the Council:
    • wrongly allowed the applicant to use the 'minor variation’ application process to increase the size of a licensed area. As a result, the restaurant has extended its trade into a rear courtyard causing noise and disturbance to nearby residents;
    • granted the minor variation, despite there being fire-safety concerns. The Council also failed to consider any licensing implications;
    • failed to take formal enforcement action against the restaurant's breach of a previously imposed planning condition; and
    • failed to use its powers under the Environmental Protection Act to ensure the abatement of nuisance arising from the restaurant.
  2. Mr Y says he has suffered avoidable disturbance from the restaurant because of the above alleged failures.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. During my investigation, I have:
    • discussed the complaint with Mr X by telephone, and considered any information he has provided on behalf of Mr Y;
    • made enquiries of the Council and considered its response;
    • consulted the relevant law and guidance around licensing, planning enforcement and statutory nuisance; and
    • issued a draft decision and invited comments from Mr X and the Council. I considered any comments received before reaching a final decision.

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What I found

Minor licence variation

  1. The Licensing Act 2003 (Premises Licences and Club Premises Certificates) (Miscellaneous Amendments) Regulations 2009 allows premises which serve alcohol to apply to their local authority for a minor variation to their licence. In 2012 the Home Office issued guidance about the minor variation process. The guidance was recently updated in 2018. The guidance says, “a minor variation is defined as one that could not impact adversely on any of the four licensing objectives. These are: the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm”. The guidance goes on to say the minor variation process may be used for changes such as:
    • small changes to the structure or layout of a premises
    • the addition of authorisation for late night refreshment or regulated entertainment
    • small changes to licensing hours
    • revisions, removals and addition of conditions.
  2. In 2013 a restaurant close to where Mr Y lives changed hands. The new tenants applied to the Council seeking a minor variation to the existing premises licence. The application sought permission to change the layout of the restaurant to include a small outdoor courtyard for 20 diners.
  3. The Council was satisfied the proposed variation met the requirements of a ‘minor variation’ according to the Licensing Act (2003). This is because the application was for a change of layout only and did not propose any increase or addition to the existing licensable activities.
  4. The Council noted the applicant had consulted with the Fire Service, who raised no concerns. Further, the Council says at the time of application there had been no previous licensing or noise complaints about the restaurant. The Council granted the variation because it complied with the four licensing objectives.
  5. Mr Y’s flat overlooks the courtyard in question. In early 2018 Mr Y and neighbours noticed furniture in the courtyard. They queried this with the Council, who confirmed the restaurant was preparing to use the courtyard for outdoor dining as per the minor variation granted in 2013. This is the first time that Mr Y became aware the restaurant had varied its licence.
  6. Mr X contacted the Council on Mr Y’s behalf to raise concerns about the use of the courtyard. As well as the potential for increased noise and disturbance, Mr X and another resident provided photographs to show that some fire exits within the courtyard had been obstructed by the introduction of furniture and plant pots.
  7. On receiving those photographs, the records show the Council liaised with a Fire Safety Officer. They visited the restaurant and spoke with the manager. The files show the manager arranged for the obstructions to be removed. The Fire Officer was happy with the action undertaken and advised the Council that it had no further concerns about fire safety. The Council fed back to Mr X and others.
  8. Mr X says the courtyard is now regularly used by restaurant diners, particularly in fair weather. He complains that procedural fault by the Council meant the restaurant wrongly received permission to vary its licence. He says the minor variation process cannot be used if the applicant proposes to increase the size of a licensed area. Mr X also says the restaurant has breached two of the national ‘licensing objectives’: public safety and the prevention of public nuisance.
  9. The Ombudsman investigates the procedure followed by the Council, rather than the merits of the decisions it makes. I have considered whether Mr X is correct in stating the Council’s handling of the application was procedurally flawed because the application did not meet the requirements for a ‘minor variation’.
  10. The Council points out that, while the courtyard may be used by diners consuming alcohol, the consumption of alcohol is not a licensable activity. According to the 2003 Act, licensable activities are the:
    • sale of alcohol
    • supply of alcohol
    • provision of regulated entertainment
    • provision of late-night refreshment.
  11. Furthermore, the Home Office recently revised its guidance. Although the law or guidance has not materially changed, the new guidance is helpful in providing clarity on the issue of outdoor drinking. It says, “In scenarios where drink orders are taken by a member of staff in the garden or outdoor space and the member of staff then collects the drinks from the licensed premises and returns to deliver them to the customer this would be treated as an off-sale and any conditions that relate to off-sales would apply” and “If the beer garden or other outdoor area is to be used for the consumption of off-sales only, there is no requirement to show it on the plan of the premises”.
  12. Mr X is correct to point out that this guidance was not in force at the time of the minor variation application. But the new guidance merely clarifies the government’s position; that outdoor drinking spaces (i.e. areas where alcohol orders are taken at tables but delivered by the licensed bar) do not need to be shown on licence plans. The law and underlying principles have not changed in this respect; it has always been true that the consumption of alcohol is not a licensable activity. The courtyard is included in the restaurant’s plan following the 2013 variation. This is over and above what is required by law. There is no fault.
  13. I understand that Mr X and Mr Y have continuing concerns about public safety (due to the alleged obstruction of fire exits by diners) and public nuisance (due to the alleged noise and disturbance arising from the courtyard). These are matters which Mr X should consider pursuing via a formal licensing review. The files show the Council issued the relevant paperwork for Mr X to submit a review in March 2018. I consider this is the appropriate course of action should Mr X wish to challenge the restaurant’s compliance with the four licensing objectives.

Planning breaches and enforcement

  1. The previous tenants applied to the Council in 2007 to vary an existing planning condition about opening hours. The Council granted temporary permission for the restaurant to extend its opening hours for a 12-month period. It would then need to re-apply to the Council for a permanent extension of hours. The Council granted this in 2008.
  2. When granting permission to extend the opening hours, the Council applied three planning conditions. Condition three states: “no detriment to the amenity of nearby residents shall be caused by noise or other disturbance arising out of the use of the land and/or buildings and for purposes hereby authorised. The external doors shall be kept closed at all times”.
  3. The Council says the purpose of this condition was to limit late night noise nuisance from the extension of the opening hours. Its intention was not to exclude the use of the courtyard for the new occupiers.
  4. Mr X complained to the Council. He said the use of the courtyard resulted in a breach of planning control because the restaurant now uses the external doors, as prohibited by condition three. The Council investigated and considered whether there was a breach of planning control and, if so, whether to pursue formal enforcement action against the restaurant.
  5. After taking some internal legal advice, the Council decided it was not expedient to pursue enforcement action, partly because the condition is not enforceable. The doors must be used for entry and exit, and it therefore follows that they cannot be closed at “all times”. Imposing such a condition is not in accordance with the National Planning Policy Framework (NPPF) which says that all planning conditions must be enforceable. However, I am not investigating the grant of permission in 2008 as this is beyond the time limits of my investigation. Instead my investigation is focused on whether the Council was at fault for failing to pursue enforcement action in 2018.
  6. After considering the files, I am satisfied the Council acted without fault. It considered the breach as reported by Mr X but decided that it was not expedient to pursue enforcement action. The Council also considered that any enforcement action would likely be subject to successful challenge at appeal due to the reason for imposing the original condition, as well as its enforceability. This was a decision the Council was entitled to take, according to the NPPF, which states that enforcement action is discretionary. Without procedural fault, I have no basis to question the merits of the 2018 decision.
  7. Mr X also complains the original planning permission, granted in the 1990’s, did not include the courtyard as it was not shown within the plans. He therefore argues this is another breach of planning control because the restaurant is using the outdoor space without the necessary planning permission.
  8. I have considered the plans. Both the site plan and the block plan include the courtyard area within the curtilage of the building. The original plans from 1993 show the courtyard used as an ‘empties store’.
  9. Based on the evidence seen, I do not uphold this part of the complaint. The Council is correct to point out that the whole curtilage of the building benefits from the A3 planning use class (restaurants and cafes) and so it is not a breach of planning control for the restaurant to use the courtyard for outside dining.

Statutory noise nuisance

  1. The Council’s files show it has received nine noise complaints about the restaurant since 2013. Two of the complaints are recent. One involves another resident, who submitted a noise diary to the Council in 2019. The Council considered the diary but did not identify a statutory nuisance. In response to the previous seven complaints, the Council did not identify any statutory nuisance from the restaurants. None of these were from Mr Y.
  2. In the other recent case, Mr X emailed the Council expressing general concerns on behalf of several residents, including Mr Y. But there is no evidence that Mr Y, or Mr X on his behalf, sent his own noise complaint to the Council with completed diary sheets. Instead he has raised general concerns.
  3. While I appreciate that a neighbouring resident has submitted their own diary sheets, I can only investigate the complaint made on behalf of Mr Y. Any injustice he experiences may be different to that experienced by his neighbours. It is important that Mr Y follows the correct process, with the help of Mr X if he wishes, in formally reporting noise complaints to the Council. The Council would then consider the nature of the noise as reported by Mr Y to decide whether it amounts to a statutory nuisance. If the Council fails to do so, Mr Y is entitled to submit a further corporate complaint.
  4. As Mr Y has not submitted a noise complaint to date, the Council has not conducted any nuisance investigations about how the noise affects Mr Y. This matter is premature for the Ombudsman to consider.

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Final decision

  1. I have completed my investigation with a finding of no fault for the reasons explained in this decision statement. I do not uphold Mr Y’s complaint.

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Investigator's decision on behalf of the Ombudsman

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