The Ombudsman's final decision
Summary: The Ombudsman exercised discretion not to investigate Mr D’s complaint about the Council failing to follow the correct procedure when it approved a minor variation application sent by a neighbouring business. This is because he could have appealed a later review hearing which considered his evidence and concerns about the application. In addition, we could not achieve any worthwhile achievable outcome by investigating further.
The complaint
Mr D complains the Council failed to follow the correct procedure when: it considered and approved a minor variation application made by a neighbouring restaurant business: and it received his formal complaint about its actions.
As a result, his and other residents’ amenities have suffered through increased noise because it relaxed some of the conditions intended to protect them.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but, must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint, it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6)) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
The Licensing Act 2003 Premises at which there is entertainment and certain other activities, including the sale of alcohol, are required to be licensed. The four licensing objectives of the Act are: prevention of crime and disorder; public safety; prevention of public nuisance; protection of children from harm.
The holder of a premises licence may apply to a licensing authority for a variation of the licence. (section 41A) If the licensing authority considers the variations proposed could not have an adverse effect on the promotion of any of the licensing objective, it must grant it.
Home Office: Minor Variations to premises licences; guidance for applicants (July 2012) It is possible to make small changes to a premises licence through the minor variation process which is easier and quicker than the full variation process.
The process may be used for changes such as: small changes to the structure or layout of a premises; small changes to licensing hours; revisions, removals, and additions of conditions.
It cannot be used to: extend licensing hours for increasing the amount of time on any day during which alcohol may be sold by retail or supplied.
The licensing authority will consult other relevant responsible authorities if there is any doubt about the impact of the variation on the licensing objectives. There is no right to a hearing, as for a full variation or new application, but the licensing authority must take account of any relevant representations when reaching a decision.
How I considered this complaint
I considered all the information Mr D provided, including information received from the Council. I have sent a copy of my draft decision to Mr D and the Council. I considered their responses.
What I found
Mr D lives in a flat. Part of it overlooks a licensed restaurant (the business), particularly a courtyard it also uses. Since 2018, when the business received a licence from the Council as licensing authority, Mr D made reports to the Council of noise disturbance.
In 2021, the Council received an Application for a Minor Variation to the Premises Licence from the business owners (the application). They wanted to: increase the hours they could use the courtyard for customers; increase the number of customers who could use it; and remove a condition which required the sale of alcohol to these customers as part of a meal.
Mr D was unaware of the application and so could not make representations against it.
When he found out about it, he sent the Council a request for it to review the premises licence. He did so because he considered the Council had failed to properly consider the need to prevent a public nuisance, failed to follow the correct procedure and guidance, and failed to consider the prevention of crime and disorder.
A short time after the review hearing, he formally complained to the Council about its failures. He is unhappy with the time it took the Council to respond to his complaint.
Analysis The review request: Mr D applied to have the premises licence reviewed.
As he had the right to appeal the Council’s decision on his request to the magistrates’ court, any complaint he has about it is not within our jurisdiction.
The application: Mr D was unaware of the application before the Council approved it. As he made no representations, he did not have the right to appeal it.
Mr D is unhappy with how the Council considered this application because the minor variation process did not allow the changes applied for as it only allows for minor changes to the structure/layout, small adjustments to its hours, the removal of out of date, irrelevant or unenforceable conditions, or additional volunteered conditions. He argued the following changes to the conditions were not minor; The increased number of customers in the courtyard; Removing the need to buy food to have alcohol in this area; Increasing the time customers could stay in the area; and Including a new condition.
Mr D argued changing these conditions could impact adversely on any of the four licensing objectives.
I am satisfied information considered by the Council on his review request is relevant to his complaint about its handling of the application because: The review of the premises licence was about the licensing objectives of preventing public nuisance and the prevention of crime and disorder; The report to the licensing sub-committee set out its options which included modifying conditions and excluding a licensable activity from the scope of the licence; Attached to the report was Mr D’s review request with the detailed grounds and his concerns about its decision on the application, along with the history of his reports to it about noise and breaches of the licence; and The committee modified one of the conditions and replaced it with the requirement for a noise management plan. This was not one of the conditions the Council had made when it received the application from the restaurant.
I am satisfied we should exercise discretion not to investigate his complaint about the way the Council dealt with the application for the following reasons: Mr D had the right to appeal the Council’s decision made on his review request; The review hearing considered the premises licence. The report to the sub-committee set out all the options available to it which ranged from modifying any condition, excluding a licensable activity from the licence, through to suspending or revoking it; The subcommittee had all Mr D’s evidence and information about the minor variation application and the history of noise problems with the site; The subcommittee considered all the evidence but, decided only to change one condition, which was not one of the conditions Mr D was unhappy about with the application; The subcommittee decided not to alter the conditions changed through the application. What this shows is even if Mr D had made representations to the application, it is unlikely the outcome would have differed. It also shows the subcommittee was satisfied with the conditions approved under the application; Mr D could have appealed the decision of the review hearing to the magistrates’ court. The report to the subcommittee confirmed he had the right to do so on 4 out of the 5 options outlined. The only option he could not appeal was if it decided to revoke the licence. Mr D did not appeal the review decision; One of the grounds for appealing a licensing authority’s decision is where it is argued it should have imposed different, or additional, conditions on the licence. This would have been an outcome Mr D wanted, namely, for the subcommittee to have imposed different conditions to the ones imposed following the application; and In addition, I see no worthwhile outcome could be achieved if we investigated further. This is because the review hearing considered all the evidence he sent, along with his concerns about procedure and guidance not being followed but, did not alter the conditions he is unhappy with. Any injustice arising from the way the Council decided the application came to an end when it carried out a review hearing confirming the conditions it imposed earlier.
I will not investigate his complaint about the way the Council dealt with his formal complaint. This is because we are not intending to investigate his main complaint.
Final decision
I exercised discretion not to further investigate Mr D’s complaint against the Council.
Investigator's decision on behalf of the Ombudsman