Report. on an investigation into complaint no 05/B/04194 against Sedgemoor District Council

Transcription

1 Report on an investigation into complaint no against Sedgemoor District Council 29 June 2006

2 The Oaks No 2, Westwood Way, Westwood Business Park, Coventry CV4 8JB

3 Investigation into complaint no against Sedgemoor District Council Table of Contents Page Report Summary 1 Introduction 3 Legal and Administrative Background 3 Statutory Noise Nuisance 3 Enforcement of Planning Conditions 4 Licensing 5 Investigation 5 January 1998 to June June 2000 to May May 2001 to April April 2003 to April April 2004 to November Council s Comments 11 Conclusions 12 Finding 14 Key to names used Mr Guthrie Mr Dennis Mrs Cassidy The Complainant A Neighbour A Neighbour Officer A Officer B Officer C Officer D Officer E Senior Planning Manager Environmental Protection Manager Senior Environmental Health and Housing Manager Environmental Health Officer Environmental Health and Licensing Officer

4 Report Summary Subject Over a period of seven years between 1998 and 2005 Mr Guthrie made complaints about noise from the Inn neighbouring his home. The Council failed properly to investigate these complaints and did not enforce planning conditions controlling noise from the Inn. As a result Mr Guthrie was caused disturbance over an unnecessarily prolonged period. Finding Maladministration causing injustice. Recommended remedy The Ombudsman recommended that the Council: 1. pay Mr Guthrie 3,000; 2. determine without further delay what action, if any, is necessary to remedy the breach of planning condition at the Inn and inform Mr Guthrie of that decision; 3. review its liaison arrangements between the Environmental Health and Planning departments to ensure that the maladministration I have identified does not recur. 1

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6 Introduction 1. Mr Guthrie complains that since 1998 the Council has failed to take prompt and appropriate action to deal with his complaints of noise nuisance from the Inn next door to his home. Mr Guthrie says that he and his wife have been caused an unnecessarily prolonged period of disturbance as a result of the Council s failure to deal with the problem. 2. The complainant, his neighbours, and the Council were invited to comment on the draft of this report before the conclusions were written. I have taken account of their comments in preparing the final text and reaching my conclusions. 3. For legal reasons the names used in this report are not the real names of the people concerned One of the Commission s officers has examined the Council s files, interviewed officers and elected members of the Council and visited the complainant. Legal and Administrative Background Statutory Noise Nuisance 5. Councils have a statutory duty to investigate complaints about noise nuisance. If, in the judgement of the Council s professional officers, the noise complained of constitutes a statutory nuisance the law says that the Council must serve an Abatement Notice on the person responsible The specific level at which noise becomes a statutory nuisance is not defined but for action to be taken the problem complained of must be serious and likely to cause prejudice to health or to interfere with a person s legitimate use and enjoyment of land. It is for a council s Environmental Health Officers to reach a professional judgement about whether or not a nuisance complained of is of an actionable level and in order to reach such a decision they will normally need to witness the problem themselves. 7. Proprietors and/or operators of commercial premises accused of causing a statutory nuisance will have a defence against prosecution if they can show that they have exercised best practicable means to prevent the nuisance being caused When considering abatement proceedings, therefore, councils will need to take into account any measures taken by the perpetrator to alleviate the nuisance. If it appears that the proprietor/operator has taken all reasonable steps to address the 1 Local Government Act 1974 S.30(3) 2 Environmental Protection Act 1990 Sections 79 & 80 3 Ibid Section 80(7) 3

7 nuisance and that legal proceedings are unlikely to be successful a council cannot reasonably be expected to pursue the matter further. 9. The Council s normal procedure on the receipt of noise complaints is to ask the complainant to complete a questionnaire about the nature of the disturbance s/he is caused. If the questionnaire is returned the Council then notifies the alleged perpetrator of the complaint and issues additional forms which enable the complainant to record any further instances of nuisance. If the matter remains unresolved and the information supplied by the complainant reveals a potentially serious nuisance the Council will then consider the installation of noise monitoring equipment to determine whether or not the nuisance is of an actionable level. 10. Complaints to the Council of noise outside normal office hours can be made by telephone to a call centre. The complaints are logged and referred to the appropriate Environmental Health Officer on the next working day. Although the Council operates a 24-hour Duty Officer rota, these officers will only normally attend emergencies such as serious fires, chemical spillages etc. The Council makes no regular provision to visit premises causing noise nuisance outside office hours. But officers may, at their discretion, make arrangements for out of hours visits if necessary in a particular case. This would normally occur only at the latter stages of an investigation in order to witness breaches of Abatement Notices. Enforcement of Planning Conditions 11. Failure to comply with conditions imposed on a planning permission is a breach of planning control. Where a developer or site operator fails to comply with planning conditions a council may serve a breach of condition notice on him/her specifying the steps which the council considers ought to be taken or the activities which ought to cease to secure compliance. However, enforcement action is discretionary and it is for the council to consider, in each case, whether or not formal action is expedient The Government's view is that the integrity of the development control process depends on a council's readiness to take effective enforcement action when it is essential. Wherever possible, breaches of planning control should be resolved by negotiation with the person responsible. If this fails, however, and there appears to be no prospect that the breach will be otherwise remedied, councils are expected to proceed with formal enforcement action The Council s policy is to resolve complaints about breaches of planning control as quickly as possible. However, its resources are limited and therefore some complaints are given greater priority for investigation than others. Highest priority is given to development which might cause irreparable harm; this would include unauthorised demolition and works to Listed Buildings. The Council s next priority is breaches of planning control causing serious loss of residential amenity. Matters 4 Town and Country Planning Act 1990 Section Planning Policy Guidance 18 4

8 causing only limited disturbance to local residents have a lower priority for investigation. 14. Following its investigation of an alleged breach of planning control the Council decides whether or not it is expedient to proceed with enforcement action. The Council s policy is to exercise control against any unauthorised development that unacceptably affects public amenity. It will normally attempt to persuade the person in control of the land to remedy voluntarily the harmful effect of their actions or development in the first instance. If negotiations are not successful within a reasonable time, however, it will normally proceed to formal enforcement action. Licensing 15. Most public entertainments, including the performance of music, require a licence from the Council. It is an offence to provide public entertainment without a licence or in a manner contrary to the conditions of any licence granted. The Council has powers to enforce the conditions of a licence and may seek the prosecution of offenders In 2003/2004 the Council s Licensing Officers introduced enforcement visits to premises it suspected of breaches of licence or unlicensed activities. Visits are unannounced and happen monthly, either on random evenings or to coincide with planned events. Investigation 17. In 1996 the Inn next door to Mr Guthrie s home was granted planning permission to extend its skittle alley. The alley shares a party wall with Mr Guthrie s property. On the advice of Environmental Health Officers planning approval was made subject to the following condition: The emission of noise from any live or amplified music in the premises shall be so controlled by limiting the output thereof and by sound insulation if necessary so that the level of noise within any dwelling not in the same ownership as the premises to which the application relates shall not exceed a level 13db below the background level. Reason: To safeguard local residents from noise and disturbance. An advisory note on the decision notice explained that the decibel level referred to roughly equates with inaudibility for a person with average hearing. 18. In order to determine non-compliance with the planning condition the Council needed to prove two things: that music could be heard in an adjacent property and 5

9 that it was being played in the skittle alley. Officer A, a Senior Planning Manager, said that in order to pursue planning enforcement action, it would be necessary to have clear evidence that music from the skittle alley had exceeded the 13db level specified. The Environmental Health Officers, however, took a slightly different view, saying that any music from the skittle alley audible in Mr Guthrie s home would be evidence of a breach of the planning condition. 19. Between 1998 and 2005 Mr Guthrie made numerous complaints about noise nuisance from the Inn. As there were a number of different landlords at the Inn during this period the Council treated Mr Guthrie s concerns as a series of separate complaints against different perpetrators. January 1998 to June In February 1998 the Council s Licensing Panel considered an application for a Public Entertainment Licence by the landlord of the Inn. The Director of Environmental Services informed the Panel that the landlord was prepared to install a Sound Limiting Device (SLD) in the skittle alley and that this could be set to a level that would comply with the planning condition. The Panel determined that a licence could be granted subject to noise control arrangements that would prevent music being heard in Mr Guthrie s kitchen and at the boundary of a property owned by another concerned resident, Mr Dennis. 21. The Council s Environmental Health department received complaints about noise from the Inn in January When a further complaint by Mr Guthrie was referred by the Planning department in June Environmental Health installed sound monitoring equipment at his home and recorded noise levels in June and July. The recording confirmed a breach of the Planning Condition and a Breach of Condition Notice was served in August The Planning Enforcement Officers asked Environmental Health to continue monitoring noise from the skittle alley. One further breach was reported by Environmental Health but this was within the compliance period of the Notice. 23. Further complaints of music from the skittle alley were made to Environmental Health in December Officer B, an Environmental Protection Manager who was involved at the time, told the Commission s Officer that these instances were not reported to planning because there was insufficient evidence that a further breach of the planning condition had occurred. But there was no record in the Council s files of monitoring capable of identifying a breach of the planning condition after September Although he had cause to believe that future landlords had breached the planning condition Mr Guthrie did not make any further complaints directly to the Planning department. He told the Commission s Officer that after 1998 he complained to the 6 Local Government (Miscellaneous Provisions) Act 1982; Licensing Act

10 Environmental Health department in the knowledge that it had previously identified a breach of the planning condition and in the belief that it would notify the Planning Enforcement Officers of its subsequent investigations. 25. In November 1998 the Council wrote to both the landlord and the Brewery and notified them that the noise levels recorded during the summer were almost certainly a statutory nuisance. It required that the volume of the music should be controlled or that some noise attenuation measures be considered. 26. By March 1999 the Council agreed a number of alterations to the Inn with the Brewery. Despite the earlier suggestion that the installation of an SLD might result in compliance with the planning condition, this option was not included among the works agreed. 27. Officer C, a Senior Environment and Strategic Housing Manager, was not involved in the discussions at the time but felt that the SLD was a useful tool. He told the Commission s Officer that he would have expected its installation to have been pursued. Officer B, who was involved at the time, did not recall whether or not the matter was discussed with the Brewery. 28. The works to the Inn were completed in August An Environmental Health Officer immediately inspected the works but the Council did not arrange for any further noise monitoring or otherwise test how effective the works had been in reducing noise from the skittle alley. 29. The Council s files show that Mr Guthrie completed a nuisance diary between December 1999 and January The noise he recorded was caused by skittle games rather than music. The Council acknowledged receipt of the diary in February and said that it would contact the Brewery further. There is no evidence that it did so, or that it took any further action to investigate Mr Guthrie s complaints. 30. At interview Officer C said that additional sound testing by the Council after August 1999 might have been useful. But in his view, if it appeared that everything possible had been done to prevent further disturbance, it would have been difficult to pursue abatement action from that time and so testing to establish continuing noise nuisance at this point would have been of little value. As a best practicable means defence was available to the landlord and the Brewery after August 1999, Officer C told the Commission s Officer that he would have expected the Council to maintain a dual approach to controlling noise from the Inn and to consider both the environmental health and planning issues concurrently. 31. Officer B agreed that testing to determine the effect of the works ought to have been undertaken. But in his view it was the Brewery s responsibility to ensure that no further nuisance was caused and so it, rather than the Council, should have arranged the testing. He explained that in his view the Council was not in an enforcement situation and so had no power to insist that further testing be done. 7

11 June 2000 to May A new landlord took over at the Inn in June The Council received only one complaint of noise during his tenancy. The disturbance again was caused by skittle games rather than music. The Council wrote to the new landlord accordingly and requested that he make further proposals to alleviate noise from the skittle alley. No proposals were received. May 2001 to April A new landlord arrived in May 2001 and Mr Guthrie complained to the Council about music from the skittle alley the following August. Noise monitoring equipment was deployed at Mr Guthrie s home on separate occasions in September, October and November, and on at least two occasions music from the Inn was recorded. 34. Officer D, an Environmental Health Officer who dealt with the complaint could not recall the type of equipment used, or therefore, whether or not sound levels were recorded. The results of the monitoring were not recorded on the Council s files. Officer D did recall, however, that the monitoring failed to establish a statutory nuisance. 35. There is no record in the Council s files of the source of the music or any evidence that compliance with the planning condition was considered. At interview Officer D could not remember whether or not he was aware of the planning condition at this time but he told the Commission s Officer that the primary purpose of his monitoring was to establish noise nuisance from any part of the Inn. 36. In October 2001 the Council served Requisitions for Information on both the landlord and the Brewery. Although normally a precursor to abatement action, Officer B did not recall any intention to commence formal proceedings. He explained that the requisitions were more likely a warning shot in anticipation of an actionable nuisance being witnessed at some future point. 37. By November Officer D had decided that the works completed in 1999 had done little to mitigate the noise nuisance caused to Mr Guthrie and in January 2002 he met Brewery representatives at the Inn and suggested further works to the party wall with Mr Guthrie s home together with modification of the skittle alley and the installation of an SLD to control music volume. Officer D told Mr Guthrie that on completion the Council would check the works and, if necessary, that it would ask the Brewery to engage a consultant to determine how effective they had been in reducing noise levels. Officer D assured Mr Guthrie that if the works did not successfully reduce the noise to an acceptable level the Council would ask the Brewery to do more to mitigate the nuisance. 38. Some modification was eventually made to the skittle alley and the balls used. It is unclear from the Council s records whether or not any alteration was made to the 8

12 party wall. But no SLD was installed and Officer D could not recall why this was not done. 39. When Mr Guthrie complained about loud music from the Inn in April 2002 Officer E, an Environmental Health Officer on night duty at the time, contacted the landlord and told him to reduce the volume. Officer D considered the complaint but did not believe the noise to be of an actionable level. He did, however, conclude that the recent works had not alleviated the nuisance caused to Mr Guthrie. He therefore asked the Brewery to test the noise levels and to identify further remedial measures. Although the Brewery agreed to further testing there was no record that this was ever completed. 40. Mr Guthrie made two further complaints in June. On the second occasion Officer E visited the Inn but determined that the music did not constitute a statutory noise nuisance and was being played in the main bar rather than the skittle alley. 41. A further complaint by Mr Guthrie about a karaoke event in the skittle alley in August was not investigated by the Council. 42. During 2002 the landlord of the Inn applied for a Public Entertainment Licence. In recognition that earlier works by the Brewery had not resolved the noise nuisance to local residents the Council s Licensing Panel resolved in August that a licence could be issued subject to the fixing of suitable inaudibility points. Fire safety works were also a condition of the licence. The landlord did not comply with these conditions and no licence was issued. April 2003 to April A new landlord took over at the Inn on 9 April The Council received complaints about noise from the skittle alley in June and July. It wrote to the landlord and there were no further complaints until November. That month two further complaints about music from the skittle alley were referred by a local Councillor. Officers took a statement from Mr Dennis and discussed the complaints with the landlord of the Inn. No further complaints followed. April 2004 to November On 15 April 2004 there was a further change of landlord at the Inn. Mr Guthrie complained about music from the skittle alley in August, and further complaints were made to the Council in September and October Directly after the first complaint the Council notified the landlord by letter and warned him not to cause a further nuisance. 45. Officer E explained that around 2003/2004 the Council s Licensing Section, of which he was then part, had begun to visit premises it suspected of unlicensed activities. The premises targeted were usually visited without warning once a month on various days and different times. Following Mr Guthrie s complaints the Inn was targeted by 9

13 Licensing Officers but a number of visits after August failed to provide evidence of either unlicensed music or noise nuisance. 46. In late October 2004, while making a planned licensing enforcement visit to the Inn, Officer E went into Mr Guthrie s house and was able to hear music from the Inn in his kitchen. Having determined that the music was being played in the skittle alley and that its volume was in breach of the planning condition Officer E referred the matter to Planning Enforcement. 47. Planning Enforcement Officers issued a planning Contravention Notice in November. To date no further action has been taken to enforce it. Officer A told the Commission s Officer that sickness and high levels of staff turnover left the Planning Department with a serious shortage of Enforcement Officers at the end of The enforcement team was not properly re-established until July Officer A said that as Environmental Health continued to address new complaints about noise at the Inn the matter was not a high priority for his officers and other work had taken precedence. By the end of November 2005 the Council had not determined whether enforcement action was expedient, but Officer A told the Commission s Officer that it would now quickly reach a decision. He suggested that a further period of monitoring by Environmental Health could be arranged in order to quickly establish whether there was a continuing breach of the planning condition that would warrant further action. 48. A further Public Entertainment Licence application was submitted to the Council in The Licensing Panel resolved to issue a licence subject to the condition that the volume of music from the Inn should be controlled by an SLD set to achieve inaudibility at specific points nearby. It determined that the music should be inaudible in Mr Guthrie s property. Following delays due to technical problems the SLD was successfully installed and appropriate volume levels were set. Mr Guthrie, Mr Dennis and Mrs Cassidy, another neighbour adversely affected by noise from the Inn, told the Commission s Officer that instances of noise nuisance had been less frequent since the device was installed. 49. The conditional Public Entertainment Licence was issued in September In November the Public Entertainment Licence was superseded by a new Premises Licence granted under the Licensing Act The new licence regulates, among other things, the playing of recorded music in the whole of the premises. The external noise monitoring points remain subject of the licence. But because the Council is prevented from adding conditions to this form of licence which duplicate other primary legislation it could not insist on the monitoring point within Mr Guthrie s house as this is already subject of a planning condition. Officer E notified the Planning department of these arrangements in August He pointed out that when the Premises Licence came into effect the Council s ability to deal with noise nuisance specific to Mr Guthrie s property under the terms of the new licence would be limited and that in future any complaints about this would be better dealt with under the planning legislation. 10

14 50. Further complaints about noise from the Inn were made to the Council in April and November The Council dealt with these in accordance with its normal procedures and determined that there was no evidence of statutory nuisance or breach of the planning condition warranting enforcement action. Council s Comments 51. On 14 March 2006 the Council wrote to my office to make some additional comments about Mr Guthrie s complaint. 52. The Council said that its officers had made a concerted effort to resolve the noise complaints between 1998 and 2004 but it was not reasonable to expect that all noise nuisance from this type of premises in a quiet rural location would be eradicated completely. The Council accepted that, in the past, co-ordination between its Environmental Health and Planning departments had not been as effective as it could have been. But the Council noted that when its Environmental Health Officers became aware of a contravention of the planning condition they informed the planning enforcement officer and that any shortcomings in its earlier actions had not adversely affected Mr Guthrie. 53. The Council said that it had properly discharged its statutory duty under the Environmental Protection Act 1990 to investigate Mr Guthrie s complaints of noise nuisance. It notes that no noise amounting to statutory nuisance was witnessed by its officers after remedial works were completed by the Brewery in The Council said that its investigations were hindered because Mr Guthrie was uncooperative and denied access to parts of his home. 54. The Council said that a holistic approach was taken to noise from the premises as a whole and noted that the planning condition related only to music from one part of the Inn and so could not control noise from the remainder of the premises. In the Council s view, therefore, planning control did not provide adequate remedy for Mr Guthrie s complaint. 55. The Council said that it had no statutory duty to test the efficacy of the remedial works completed by the Brewery and nor had it any responsibility for specifying precisely what works would be required to prevent a statutory nuisance in future that being a matter for the landlord and Brewery. The Council said that it accepted the works as a best practical means to prevent nuisance and reiterated that no further actionable nuisance was identified after the works were completed. 56. The Council said that it did make suggestions that an SLD could be installed but, for the reasons explained above, it could not specify that remedy. The Council pointed out that although the installation of an SLD in 2005 appeared to result in some improvement, the equipment did not guarantee the future avoidance of noise nuisance and that this depended largely on the management of the Inn. 11

15 57. The Council acknowledged that it had been unable to follow up the breaches of planning conditions reported to its Planning department in November 2004 due to staff shortages. It said that its planning officers were aware, however, that the matter was being pursued by the Environmental Health Officers and that this was a preferable approach because it dealt with noise from the premises as a whole. Conclusions 58. It is to be expected that an Inn in a quiet village location will cause some disturbance to neighbouring properties and I agree with the Council that it would be unreasonable to expect this could be eradicated completely. In this case, however, Mr Guthrie s complaint was about the disturbance he was caused by the skittle alley at the Inn. Planning permission for the skittle alley was granted by the Council on condition that live or amplified music from that area should be inaudible in neighbouring premises. But for that condition the skittle alley would have been unacceptable in planning terms. 59. The Council had powers to control unacceptable levels of noise from the skittle alley under Environmental Health and Planning legislation. In these circumstances I would have expected the Council to pursue a coordinated approach, exploiting powers most likely to protect the amenity of local residents. But I have seen little evidence that there was a properly co-ordinated investigation of Mr Guthrie s complaints by the Council s Environmental Health and Planning departments between 1998 and The Council s Environmental Health Officers took the lead in investigating Mr Guthrie s complaints and their concern was to determine whether or not the noise amounted to a statutory nuisance. The Council says that it properly discharged its statutory duty in this regard but found no evidence of an actionable level of noise nuisance. The Council has no record of the noise monitoring conducted in 2001, but the service of Requisitions for Information suggests that Officers considered the noise to be serious if not actionable. 61. Despite the possibility of a breach of planning conditions, the Council s Planning department played little or no part in investigating the complaints of noise from the skittle alley between August 1998 and October Mr Guthrie directed his complaints to the Council s Environmental Health Officers in the reasonable expectation that the Council would properly monitor both statutory nuisance and breaches of the planning condition. But with the exception of one instance in 2002 I have seen no evidence that any of his complaints were referred to the Planning department before October This was maladministration. 62. The Council has acknowledged that there was a lack of coordination between its Planning and Environmental Health departments but says that it preferred to take a more holistic approach to the problem of noise from the Inn. I am not convinced by this explanation. A holistic approach should, in my view, have included a proper investigation of compliance with Condition 2 of the planning approval. But the Environmental Health Officers involved were either unaware of the Condition or did 12

16 not consider it their role to monitor compliance with it. The failure properly to investigate breaches of the planning condition was maladministration. 63. The Council did not make any effort to determine whether or not the works completed by the Brewery in 1999 had resolved the disturbance caused to Mr Guthrie. Officer B said that this, in part, was because the Council was not in an enforcement situation. The Council had no statutory duty to determine the efficacy of the remedial measures but given that the works followed a Breach of Condition Notice the Council might, in my view, reasonably have tested the extent to which the music noise was reduced. The Council similarly failed to determine the efficacy of the works completed in 2002 although it had, on that occasion, secured the Brewery s agreement to further noise testing. These failures were maladministration. 64. The Council may not have been in a position to insist that an SLD was installed at the Inn as a means of preventing statutory noise nuisance. But the planning condition required that amplified music should be controlled by limiting the output and by sound insulation. Had it paid more attention to ensuring compliance with the planning condition this was a remedy the Council might reasonably have pursued more vigorously. 65. The Council has argued that Mr Guthrie was not adversely affected by the lack of a better coordinated approach to his complaints. I do not agree. In consequence of the Council s failure properly to monitor compliance with Condition 2 and involve its planning officers a number of opportunities to bring the problem under better control were missed. Most notably, in October 2001and October 2004 the Council had clear opportunities to take more prompt and effective action. So Mr Guthrie suffered some loss of amenity as a result of the Council s failures. I note, though, that there were periods between 1998 and 2005 when he appears to have had no cause to complain. The disturbance was not, therefore, continuous. 66. Following the grant of a Premises Licence, music from the skittle alley can no longer be controlled by licensing conditions. It appears that enforcement of the planning conditions is now the primary means of preventing noise nuisance to Mr Guthrie s property. The Council should determine a clear strategy for dealing with any future complaints. 67. I am conscious that Mr Guthrie s neighbours may have suffered some injustice, though to a lesser degree, from the maladministration I have identified. I hope the Council will consider, in the light of recommendation 1 below, compensating them for any avoidable loss of amenity. 13

17 Finding 68. For the reasons given in paragraphs 58 to 64 I find that there has been maladministration causing injustice to Mr Guthrie as described in paragraph 65. To remedy this injustice I recommend that the Council should: 1. pay 3,000 in compensation to Mr Guthrie; 2. determine without further delay what action, if any, is necessary to remedy the breach of planning conditions at the Inn and inform Mr Guthrie of that decision; 3. review its liaison arrangements between the Environmental Health and Planning departments to ensure that the maladministration I have identified does not recur. J R White Local Government Ombudsman The Oaks No 2 Westwood Way Westwood Business Park Coventry CV4 8JB 29 June