Summary: Mr X complains the Council has not properly investigated his complaints about noise and odour nuisance and planning irregularities relating to a restaurant next door. He says it has not properly assessed the nuisances and dismissed his planning concerns until he paid for legal advice and a surveyor at his own cost which proved otherwise. The Ombudsman finds fault with the Council for giving Mr X incorrect information about a breach of planning control and for its failure to deal with the absence of officer properly. This caused significant frustration and put him to the time and trouble of complaining. The Ombudsman recommends the Council should remedy this by apologising and making a financial payment to Mr X.

The complaint

1. Mr X complains that since July 2017 the Council has not properly investigated his complaints about noise and odour nuisance and planning irregularities relating to a restaurant next door. He says the Council has not properly assessed the nuisances and dismissed his planning concerns until he paid for legal advice and a surveyor at his own cost which proved otherwise.
2. Mr X says this has cost him a significant amount of money and the Council’s failure to act has caused him distress and prevented him living in his own home.

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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. 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)
5. 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

6. I spoke with Mr X and considered his correspondence with the Ombudsman and the Council on this matter. I then wrote to the Council with enquiries and reviewed the material it sent in response.
7. I shared my draft decision with Mr X and the Council and I invited them to comment on it. I considered their comments before producing my final decision.

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What I found

8. Mr X bought his house, which is immediately next door to a restaurant, in 2017. It had undergone work before Mr X bought it. This saw a room from the upstairs of the restaurant incorporated into Mr X’s house.
9. A party wall was put in place, subject to planning permission and listed building consent which was granted in 2015. Mr X moved in but says he soon found that noise and smells from the restaurant were disturbing him and so complained to the Council.
10. Mr X particularly believed the internal party wall separating his house from the restaurant was inadequate. He told the Council soon after he felt it was not in accordance with building regulations. This meant he could hear diners talking and music from the restaurant, especially late at night. He also had concerns about restaurant staff leaving their kitchen door open and the smells and noise coming from it.
11. After Mr X complained, the Council’s environmental health department sent him diary sheets to fill out. The officer in the case also arranged for the Council’s ‘noise patrol’ to visit out of hours one evening in September. The Council says the two officers who attended spoke with the restaurant staff but decided the noise issues did not meet the threshold of a statutory nuisance. Mr X says the Council never told him this. He says the officers who came to his house seemed to sympathise with him. He is also unhappy the Council has never produced evidence obtained from the noise monitoring equipment or a report of its findings.
12. The Council planning officer involved in the original grants of planning permission and listed building consent for the building also visited Mr X. The Council says the officer also met with the owner of the restaurant to broker a solution between the neighbours.
13. As Mr X continued to raise noise nuisance complaints, the Council installed noise measuring equipment in his house in November 2017. Around this time, Mr X instructed an independent surveyor to examine the party wall he believed was inadequate. He shared the results, recommending further tests, with both the planning officer and the environmental health officer.
14. In March 2018, Mr X became frustrated with the lack of progress and made a corporate complaint about the Council’s response. He said he felt the Council’s planning department was responsible for the issues with his property. He also said the Council had failed to deal with the noise and smells coming from the restaurant.
15. The Council wrote to Mr X in April 2018. It said its investigation had found noise coming through the party wall on his staircase was not a statutory nuisance. It said his independent survey had found the party wall complied with building regulations on noise and, while one wall performed poorly, it was not in a habitable room. The Council’s letter did not refer to the odour issues. It later explained it had already investigated odour complaints made by a neighbouring property and offered to attend his house too. It offered dates for this in late May or early June but, by this time, Mr X had decided to move out and he said it would ‘rather now wait’ for it to resolve his complaint.
16. The Council has since told the Ombudsman, in explaining the gap in action between November 2017 and April 2018, the original environmental health officer assigned to the case took sick leave and then left its employment.
17. The Council’s planning department told Mr X in August 2018 it had found no evidence of breaches of planning control. However, after Mr X engaged the services of a solicitor, the Council eventually accepted planning permission had never been sought to install an extraction duct to the roof of the restaurant. The Council has invited the restaurant owner to make a retrospective planning application.
18. Mr X has since instructed a further independent survey to investigate the party walls separating his house from the restaurant on the first floor. He says this supports his view they do not comply with building regulations. The Council says it has accepted this position and is now working with the owner of the restaurant and building control to resolve the situation.
19. A senior environmental health officer visited Mr X’s property in September 2018 to investigate the cause of the smells. He concluded that, although there were strong odours caused by restaurant staff leaving the kitchen door open, this was not the result of unreasonable behaviour. It was therefore not a statutory nuisance in the officer’s opinion.
20. Mr X still believes there is a statutory nuisance. The Council says the investigation remains open and it intends to visit more when the weather improves, as that is likely to be when the kitchen door will be open more often.

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Analysis

21. I cannot investigate the original planning decisions taken in this case between 2014 and 2016. The law says we should only investigate matters which happened more than 12 months before somebody came to the Ombudsman if there is good reason to do so.
22. Mr X bought his house in 2017 and the Council had decided all but one of the planning applications about the building at that point. The exception is the retrospective application made in late 2018. It is reasonable to conclude all the information Mr X and his conveyancer needed from a planning perspective to make informed decisions was available before he bought his house. That also includes his concern about the decision to allow a restaurant to be in such proximity to residential dwellings.
23. The Council’s planning department corresponded with Mr X, and later his solicitor, over many months. Mr X’s complaint developed during that time as he came to understand more about the process and then sought legal advice. At first the planning officer took a role as an intermediary between Mr X and his neighbour, in an effort to broker a solution to the noise issue. There was also liaison between the planning officer and the environmental health officer also working on the case around this time too.
24. There was no duty on the Council to carry out investigations into the quality of the party walls. The condition imposed by the listed building consent it granted in 2014 aimed to protect the ‘special architectural and historical character’ of the building. The wording of the whole condition shows appearance was its main concern.
25. Developers can prove their adherence to building regulations in two ways. Although building control can be a local authority role, the law also allows private companies to certify works comply with building regulations. Where a private company acts as an ‘Approved Inspector’, as happened in this case, the local authority has no role to play in supervising their work. Therefore, any original approval decisions around the party walls in this case are outside the Ombudsman’s jurisdiction.
26. I find the Council was at fault for assuring Mr X there had been no breaches of planning control in August 2018 when in fact there was at least one. This is because there was already listed building consent to install the extractor vent. With a careful examination before replying to Mr X, the absence of a corresponding planning application should have been apparent.
27. However, it was not fault for the Council to not notice this sooner than Mr X’s complaint. The timing of a planning application is a matter for the applicant, although we would expect the Council to consider what action to take when someone brings a potential breach to its attention. That happened here, although belatedly. This caused Mr X an injustice in the frustration caused to him, as it took his solicitor more than one attempt until the Council conceded the point. It is however difficult to say the solicitor’s costs are part of the injustice caused by this fault, as this was one of many issues he raised at the time.
28. I also find fault with the actions of the Council’s environmental health department in this case. The decision whether something is a statutory nuisance or not is a professional judgement for a trained officer to take. The Ombudsman will not intervene where such a decision is taken in consideration of all the evidence, even if a complainant disagrees with the officer’s judgement.
29. The environmental health officer’s initial actions for the noise aspect of the complaint were appropriate. Mr X received diary sheets and, within a few weeks, the Council’s ‘noise patrol’ visited at a time corresponding to when he said the noise was worse. However, there is no evidence of any immediate action about the odour aspect of his complaint. I can see from the Council’s records it investigated similar complaints from Mr X’s neighbours. However, it should have explained this to him much sooner.
30. Although it installed noise measuring equipment in November 2017, and the officer in the case soon analysed the results, there then followed an unacceptable period in which it provided no updates to Mr X. It then told him it had closed the case. The Council has explained this was because of the unexpected absence and then departure of the officer in the case. However, the failure to hand the case to another officer to oversee instead was fault, especially as it took a formal complaint from Mr X to get it looked at again. This caused Mr X an injustice in the form of his time and trouble in having to complain and further frustration.
31. Since Mr X complained, I am satisfied the Council has acted without fault in respect of his environmental health complaint. A senior officer has taken responsibility for the case and visited Mr X’s property to witness the nuisance. He decided it was not a statutory nuisance at that point, but the Council confirms the case is still open.
32. Finally, although I acknowledge Mr X has felt unable to return to his house for some time now, I cannot conclude this is directly due to fault by the Council.

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Agreed action

33. By 13 July 2019, the Council has agreed to:
• Write to apologise to Mr X for incorrectly telling him in August 2018 there were no breaches of planning control. Also, for the unacceptable failure to ensure the environmental health investigation continued while the original officer in the case was absent.
• Pay Mr X £200 in recognition of his time and trouble and frustration caused by the fault identified.
34. The Council should write to the Ombudsman to confirm when it has completed these actions.

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Final decision

35. There was fault by the Council in some aspects of this case and this caused Mr X an injustice which it should remedy.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman