Summary: We will not investigate this complaint about the Council’s involvement with noise from a restaurant vent. Our involvement would not lead to a different outcome.

The complaint

1. Mr X complains the Council has not effectively dealt with noise from a restaurant vent since 2019. He has suffered over two years of unnecessary noise, which has caused him frustration and lack of sleep. Mr X has also suffered a financial loss as he has bought items such as noise reducing curtains.

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The Ombudsman’s role and powers

2. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Residents at the development in which Mr X lives complained to the Council in 2019 about the noise coming from a vent attached to a restaurant. The Council considered the noise from both an environmental health and planning enforcement perspective.

Noise as a statutory nuisance

6. The Council’s environmental health officers decided the noise did not constitute a statutory nuisance. For a noise to count as a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premises, or injure health or be likely to injure health. The Council investigated in response to the reports and made a decision it was entitled to, based on its officer’s judgement. We could not require it to take different action.

Noise as a breach of planning condition

7. The Council’s planning officers decided the vent was not in breach of the conditions that had been attached to the development’s planning permission. However, an independent assessment in 2020 found the vent was making noise at a higher level than the planning condition allowed.
8. The residents complained to the Council. The Council then accepted there was avoidable delay and agreed in late 2021 to pay £50 to each complainant to acknowledge the frustration and distress caused by this. It had not yet come to a final decision about whether to enforce against the breach, and it could not say yet whether the complainants had experienced unreasonable noise.
9. The Council therefore considered this further in December 2021, after the restaurant had carried out some work aimed at mitigating the noise. The Council observed the noise to be very quiet, causing no undue disturbance. It decided, in any event, it would be unreasonable and not in the public interest to enforce the planning condition.
10. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach.
11. Even before noise mitigation measures, the noise in question was measured to be around 60 decibels – similar to normal adult conversation between two adults. The Council has explained its reasons for taking no further action, and it was entitled to make this decision. Our involvement would not lead to a different outcome.

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Final decision

12. We will not investigate Mr X’s complaint because our involvement would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman