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London Borough of Merton (04B09253)

Planning enforcement & Environmental health

Maladministration causing injustice

15 December 2005

‘Mr Rose’ (not his real name for legal reasons) lived in an upstairs flat next door to a takeaway. In May 1999 he complained to the Council about the vibration, noise and smells from the ventilation system installed without the benefit of planning permission. He also complained about its appearance.

The Council took no action until August 2000 when it accepted that the ventilation system needed planning permission because it was unsightly. An application was refused in January 2001 on the grounds that it was harmful to the visual amenities of the area. The Council did not investigate the complaints about the noise, smell and vibration to assess whether Mr Rose was suffering a statutory nuisance. On 28 November 2001 an enforcement notice was served on the owner requiring that the ducting be removed within two months.

Mr Rose continued to suffer nuisance from the operation of the ventilation system and the extended opening hours throughout 2002. He involved his local MP and a firm of solicitors to press the Council for action. The owner submitted an amendment to the application for planning permission for the ventilation system in December 2003 and the application was finally approved on 20 October 2004.

In January 2005 the Council wrote to the owner of the takeaway to say it was aware that he was operating outside of the hours permitted by the planning permission and to warn him of the possibility of legal action. It said permission to extend the opening hours was unlikely to be granted. On 18 February the Council served a Breach of Condition Notice.

The Ombudsman concluded that there were unacceptable delays in dealing with Mr Rose’s complaints, a failure to respond to correspondence and a failure to monitor the situation properly. The Council also failed to investigate whether he was suffering a statutory nuisance.

The Ombudsman found maladministration causing injustice and recommended that the Council should:

  • pay Mr Rose £5,000;
  • reimburse his reasonable legal costs;
  • monitor closely action in respect of the takeaway to ensure that his amenity is properly safeguarded; and
  • review its planning enforcement function especially in respect of liaison with environmental health to ensure arrangements are fit for purpose.
     

Date Published: 24/04/09