Summary: Mr B complained the Council failed to act on noise nuisance and breaches of licensing conditions and failed to identify the venue did not have planning permission until 2024. There was some drift in the Council’s decision-making in 2024 and a lack of liaison with the planning department. That left Mr B with some uncertainty. An apology and payment to Mr B, along with reminder to officers, is satisfactory remedy.

The complaint

1. The complainant, Mr B, complained the Council:
• failed to act on noise nuisance and breaches of licensing conditions at a venue next to his property; and
• failed to identify the venue did not have planning permission until 2024.
2. Mr B says he experienced excessive noise from the venue for longer than he should have.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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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What I have and have not investigated

5. The Ombudsman will not normally consider a complaint about matters which happened more than 12 months ago. In this case though I am satisfied Mr B did not know the venue did not have planning permission until 2024. I am therefore exercising the Ombudsman’s discretion to investigate what happened from 2022 onwards as Mr B would not have known to challenge the Council about whether the venue had permission to operate before 2024.

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr B and the organisation 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

Government guidance issued under section 182 of the Licensing Act 2003 2007

8. The legislation provides a clear focus on the promotion of four statutory objectives which must be addressed when licensing functions are undertaken:
• the prevention of crime and disorder;
• public safety;
• the prevention of public nuisance;
• the protection of children from harm.
9. If an application for a premises licence or club premises certificate has been made lawfully and there have been no representations from responsible authorities or interested parties, the licensing authority must grant the application, subject only to conditions that are consistent with the operating schedule and relevant mandatory conditions.
10. The licensing authority may not impose any conditions unless its discretion has been engaged following receipt of relevant representations and it has been satisfied at a hearing of the necessity to impose conditions. It may then only impose conditions that are necessary to promote one or more of the four licensing objectives. Such conditions must also be expressed in unequivocal and unambiguous terms to avoid legal dispute.
11. The statement of licensing policy should indicate that planning, building control and licensing regimes will be properly separated to avoid duplication and inefficiency. Applications for premises licences for permanent commercial premises should normally be from businesses with planning consent for the property concerned. However, applications for licences may be made before any relevant planning permission has been sought or granted by the planning authority.
12. The planning and licensing regimes involve consideration of different (albeit related) matters. For instance, licensing considers public nuisance whereas planning considers amenity. As such licensing applications should not be a re-run of the planning application and should not cut across decisions taken by the local authority planning committee or following appeals against decisions taken by that committee. Licensing committees are not bound by decisions made by a planning committee, and vice versa.
13. The granting by the licensing committee of any variation of a licence which involves a material alteration to a building would not relieve the applicant of the need to apply for planning permission or building control where appropriate.
14. Proper integration should be assured by licensing committees, where appropriate, providing regular reports to the planning committee on the situation regarding licensed premises in the area, including the general impact of alcohol related crime and disorder. This would enable the planning committee to have regard to such matters when taking its decisions and avoid any unnecessary overlap. A planning authority may also make representations as a responsible authority as long as they relate to the licensing objectives.

The Council’s planning enforcement policy

15. Enforcement of planning control focuses on proportional resolution rather than punishing those who have acted in breach.
16. The Council will not condone wilful breaches of planning control and will exercise its discretion to take enforcement action if it is considered expedient to do so.
17. The use of formal enforcement powers should be a last resort. Typically the Council will give those responsible for a breach of planning control the opportunity to cease the breach of planning control or seek to regularise the breach before resorting to using its formal enforcement powers.

The Council statement of licensing policy

18. The planning and development committee and the licensing committee may provide reports relating to licensed premises to each other, thereby ensuring communication between those exercising licensing, planning and building control functions.
19. Enforcement action will be taken where required. The relevant options for enforcement are:
• take no further action;
• take informal action;
• issue verbal warning and/or written warnings;
• issue appropriate statutory notices;
• instigate a licensing review hearing for licensed premises;
• issue formal cautions; and
• take legal proceedings.

What happened

20. Mr B lives next to a venue (the venue) which began being used for live music performances in 2020. The operator of the venue did not have planning permission but used the temporary change of use provisions which existed until November 2021. The Council issued a premises licence to the venue in 2020.
21. The Council received complaints about the venue in August 2022 and visited the venue to offer advice. The Council contacted Mr B for an update on issues with the venue in October. Mr B told the Council the premises continued to operate but the impact was not as bad. He said he still wanted the Council to investigate.
22. A licensing enforcement officer visited the venue on 4 November and did not identify any licensing issues. The Council said it would continue to monitor the situation.
23. Mr B reported noise nuisance from the venue on 11 November. The Council wrote to the operator of the venue to encourage him to keep noise to a level that did not interfere with neighbours. The Council then sent Mr B a monitoring record sheet for him to complete.
24. On 16 December a licensing officer visited the premises but did not identify any licensing issues.
25. The Council received further noise complaints from Mr B in April 2023. The Council spoke to Mr B about installing noise recording equipment. Mr B returned diary sheets in May 2023 and the Council installed noise recording equipment later that month.
26. In May another resident reported the venue emptying bottles at midnight after an event on Saturday. The Council contacted the operator of the venue to remind him that was contrary to the premises licence.
27. On 31 May the operator of the venue told the Council it planned to reduce the noise level of live acts.
28. On 24 June and environmental health officer carried out in person noise recording from Mr B's bedroom. The officer noted intrusive levels of noise and bottle bins emptied twice outside the hours agreed as part of the licence.
29. On 9 July Mr B emailed the Council to complain about the operator of the venue emptying bins outside the licensed hours the previous weekend. The Council contacted the operator of the venue on 14 July to remind him of the licensing requirements.
30. On 26 July Mr B told the Council the venue had advertised another social event which suggested it had a temporary licence.
31. Mr B contacted the Council again on 30 July to report an event had taken place the previous evening and he had experienced noise nuisance. Mr B also said the venue had emptied bottles in the early hours of the morning.
32. Mr B contacted the Council on 5 August to report a further late night event advertised at the venue. Mr B said the venue had emptied bottles the previous evening after 11pm.
33. Mr B reported further noise nuisance and bottles emptied outside the agreed hours on 13 August. Following that the Council refused further temporary event notices. The Council contacted the operator of the venue to tell him it had done that because of the ongoing noise nuisance complaints. The Council said it would meet with the operator of the venue the following week to discuss setting acceptable sound levels for future events.
34. The Council received a further complaint about the breach of licence conditions on 27 August. That was on one of the dates for which the Council had refused the temporary event notice.
35. Council officers visited the venue to discuss the noise issues. The Council suggested the owner reduce the volume of noise or seek professional advice about insulating the premises. The Council updated Mr B on 1 September.
36. Following a licensing meeting the Council issued a warning letter to the operator of the venue on 8 September. That warning letter noted the Council had refused a temporary event notice seeking an extension to the licensing hours but the venue had opened beyond the licensing hours set out in the conditions. The Council also raised concerns about the operator breaching the conditions of the licence by emptying bottle bins outside the allowed hours, not closing all windows and doors during regulated entertainment and other matters unrelated to this complaint.
37. Mr B reported further noise issues on 10 September. Mr B also said the venue had emptied bottle bins after 11pm.
38. On 28 September the operator of the venue told the Council he intended to carry out various improvements to address noise from the site. He also said the venue had a camera over the bottle bins so they could monitor emptying times.
39. Licensing officers visited the venue on 11 and 20 October but did not identify any licensing issues.
40. On 2 November Mr B reported further noise from the venue.
41. On 17 November licensing officers visited the premises to discuss changes. At that meeting the venue confirmed it had taken the following action:
• reduced the overall numbers;
• reduced bass;
• changed monthly events to bimonthly;
• installed smaller speakers;
• installed a spring mechanism on the door to keep it closed;
• changed to no amplified bands, just acoustic singers;
• reduced the number allowed in for comedy nights;
• placed CCTV on the bins;
• stopped music at 10:15pm;
• provided for a trained person on site;
• intended to trial a different type of music event for an older generation.
42. A licensing officer visited the venue on 1 December and did not identify any licensing issues.
43. In December the Council approved four temporary event notices as it did not believe it had enough evidence to refuse given the measures the venue had taken. When Mr B queried that the Council offered to install noise recording equipment in Mr B’s property over the Christmas period. However, Mr B said he was not available.
44. Mr B reported loud music on 16 December and 23 December.
45. On 3 January 2024 the Council emailed the operator of the venue to ask when the Council would receive a planning application to regularise the use of the building as the temporary consent had expired.
46. On 12 January an environmental health officer carried out noise recording at Mr B’s property. The officer noted the prominent noise source was from the sound of plant (a fan and an idling freight train) with the bass of the music heard faintly but not loud enough to constitute a statutory nuisance. The officer also visited the venue.
47. Mr B reported further noise from the venue on 21 January and 4 February. The Council contacted Mr B to arrange further noise monitoring. That took place on 2 March. The Council told Mr B on 25 March it would arrange a meeting with the operator of the venue to discuss options.
48. The Council tried to contact the operator of the venue in April but was unsuccessful. The Council therefore emailed the operator on 7 May. The Council said it wanted to set a noise level from within the premises to add to the premises licence. The Council outlined the options for doing that and asked for a response within seven days or the Council would have to carry out a licence review.
49. The Council contacted the operator of the venue later in May to arrange a visit for a noise assessment. The operator of the venue told the Council he intended to put in a planning application.
50. Mr B contacted the Council again about noise from the venue on 7 June, 15 June, 5 July, 2 August and 4 August. The Council did not respond to Mr B about those contacts but it did visit the venue on 19 July and did not identify any issues.
51. The Council received a planning application from the operator of the venue on 6 August.
52. The operator of the venue put in a further temporary event notice in August which the Council refused.
53. The Council carried out external noise recordings on 4 September when the premises was closed to show background noise readings. Officers recorded they could hear the faint bass of songs from a different venue. Officers also noted the area had extractor fans and plant from nearby restaurants, takeaways and pubs which created noise as well as traffic.
54. Mr B contacted the Council on 18 October to report the venue had advertised live music for that evening and a social event the following day.
55. The Council refused the planning application in October and later contacted the venue to tell it to stop use of the venue.
56. Mr B contacted the Council on 21 October to report future events advertised for the venue. Following that the Council served an enforcement notice requiring the operator to stop using the ground floor for the use. That would have taken effect from 21 November if not appealed.
57. Officers visited the venue in the evening on 25 October and identified quiet music and no licensing issues.
58. The Council carried out noise recordings outside the premises on 1 November. That was after Mr B emailed the Council to report another night of excessive noise with the operator of the venue leaving the doors open.
59. In November the Council told the operator of the venue it was carrying out noise assessments which could result in a review of the premises licence.
60. The operator of the venue lodged appeals against the refusal of planning permission and the enforcement notice in November.
61. Officers attended the venue again on 22 November and identified music taking place after the approved hours. The officers present reminded the operator of the venue that music needed to stop at the 10:30pm deadline.
62. The current position is the planning and enforcement appeals are outstanding but the business has now stopped operating.

Analysis

63. Mr B says the Council failed to act in response to noise nuisance and breaches of licensing conditions at a venue close to his property. Mr B says because of that he experienced noise nuisance for several years. Mr B says the Council wrongly granted licences to the venue when it did not have planning permission.
64. The evidence I have seen satisfies me Mr B has regularly complained to the Council since 2022. I am satisfied the Council has properly investigated Mr B’s concerns as it has liaised with the operator of the venue, visited Mr B and carried out noise recordings. I am satisfied those actions resulted in the Council refusing various temporary event notices in 2023 due to concerns about noise. I therefore could not say the Council failed to act. I am also satisfied the action the Council took resulted in the operator of the venue undertaking some measures to control noise. So, I do not criticise the Council for how it dealt with the case before the end of 2023.
65. I am satisfied Mr B continued to report noise nuisance to the Council in 2024. The Council’s monitoring of the venue early in 2024 suggests it continued to have concerns about the level of noise produced. However, Council visits in May and July 2024 did not identify any issues. I have seen no evidence the Council told Mr B about that, despite the fact he continued to report noise in June, July and August 2024. That is fault.
66. I also appreciate matters were complicated in 2024 as it became clear the venue did not have planning permission. I consider it likely though if environmental health had liaised with planning about the status of the venue before 2024 it could have identified that earlier. That may have resulted in earlier action to seek a planning application. That, in turn, may also have led to the venue closing earlier which would also have reduced the impact on Mr B.
67. I see no reason the Council could not have considered taking formal enforcement action to prevent noise nuisance earlier in 2024 if it had identified noise at statutory nuisance levels given it did not receive the planning application until August 2024. I accept though the May and July visits in 2024 did not identify any issues. It is therefore possible the Council would have decided formal enforcement action was not necessary. However, Mr B did not have any information about that until the Council responded to his complaint in August 2024.
68. For the licensing matters, I am satisfied Mr B repeatedly raised issues about that with the Council. I am satisfied the Council acted on those concerns by visiting the premises, giving the operator advice and issuing a warning letter. I am satisfied the Council acted in 2023 by refusing various temporary event notices in response to the licensing issues and the noise issues. I therefore could not say the Council failed to act.
69. I have seen no evidence to suggest the Council considered whether it was necessary to review the licence or take formal enforcement action when Mr B continued to report breaches in 2024. I accept though the lack of planning permission for the venue and the fact the Council was expecting a planning application which it received in August 2024 likely affected any action the Council could reasonably take to enforce licensing conditions. There was also the matter of the visits in May and July 2024 which did not identify any issues with the venue. I therefore do not criticise the Council for failing to take licensing enforcement action after the planning status of the venue became clear and the operator agreed to put in a planning application.
70. Mr B raises concerns about whether the Council should have granted licences when the venue did not have planning permission. While I understand Mr B’s concern, a venue does not have to have planning permission to receive a licence as the two processes are separate. I therefore cannot criticise the Council for issuing licences for the venue. As I said earlier though, if the Council had liaised with planning earlier in the process it could have identified the venue did not have planning permission.
71. Mr B says the Council failed to check the occupancy levels for the venue when it issued a licence. I am satisfied the Council could only impose restrictions on occupancy if the fire authority recommended it as the responsible body. I have seen no evidence the fire authority made any comments on the licence application. I therefore have no grounds to criticise the Council.
72. For the injustice to Mr B, I appreciate he has experienced noise nuisance from the venue over several years. That is due to the actions of the operator of the venue though, rather than the Council. As I have made clear, I do not consider the Council at fault for any action it took on noise nuisance or licensing conditions before 2024. Enforcement action is discretionary and councils will normally seek to resolve issues through informal means before taking formal enforcement action. I am satisfied that is what the Council did in this case before 2024.
73. I also could not speculate about whether the Council would have taken formal enforcement action had it properly considered the evidence in 2024. That would depend on whether the Council considered noise levels exceeded statutory nuisance levels and whether it decided to review the license. Given the outcome of the visits in May and July 2024 and the planning status of the venue complicating the licensing issues it is possible the Council would not have taken formal action.
74. I therefore consider Mr B’s injustice is limited to his uncertainty about whether the Council could have resolved the situation earlier both about the lack of planning permission and the noise nuisance. As remedy for Mr B’s uncertainty I recommended the Council apologise to him and pay him £300. I cannot now make any recommendations around consideration of enforcement action for the venue. That is because the business has closed and there are planning and enforcement appeals outstanding.
75. I also recommended the Council send a reminder to officers in environmental health and licensing about the need to consider whether formal enforcement action is required once it has identified a noise nuisance or breach of licensing conditions. The reminder should also cover the need to consider whether to update the planning department on any issues with licensed venues. The Council has agreed to my recommendations.

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Action

76. Within one month of my decision the Council should:
• apologise to Mr B for the uncertainty he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr B £300; and
• send a reminder to environmental health and licensing officers about the need to consider whether to take formal enforcement action when noise nuisance or a breach of licensing conditions has been identified. That reminder should also include the need to consider whether to update the planning department on any issues.
77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman