• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr C complained about the Council’s failure to control noise and smell nuisances from a restaurant next door to his property. He also complained that the Council had failed to control breaches of planning permission in the same building and did not deal with anti-social behaviour. The Council was at fault for a failure to respond to his complaint for five months. This caused Mr C and his family injustice as they suffered stress and they were put to time and trouble. The Council has agreed to apologise and pay a sum in recognition of the fault found.

The complaint

1. The complainant, Mr C, says the Council was at fault for:
   • 1. A failure to take enforcement action against the owners of two buildings next door to his property who made noise and were responsible for anti-social behaviour.
     2. A failure to take planning enforcement action against the owners of the two buildings when they breached planning permission.
     3. A failure to properly monitor and assess environmental health issues arising from the above,
     4. Failures in the complaints process.
2. Mr C says the Council’s fault caused him injustice in that his quality of life has been reduced. He has lost sleep and has suffered anxiety and stress. He and Miss R had taken time and trouble in pursuing the Council.
3. Mr C says he would like the Council to take enforcement action and prevent the business from operating. He wants the Council to refuse planning permission to extend operating hours at the site.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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. We must also consider whether any fault has had an adverse impact on the person making the complaint. If there was fault which caused injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with an organisation’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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

8. Mr C is represented by his daughter, Miss R. I spoke to Miss R. I wrote an enquiry letter to the Council requesting further information. I considered all the information I had gathered alongside any relevant law and guidance.
9. Miss R and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Planning enforcement

10. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined in the Town and Country Planning Act 1990 as:

• Carrying out development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

11. It is for the planning authority to decide whether it is expedient to take action. There is no definition of ‘expedient’ set out in the relevant law and guidance. Councils should consider though whether it is expedient to take such action.
12. After a certain amount of time has passed, an unpermitted development becomes immune from planning enforcement action. In this case, the Council was unable to take enforcement action because a business had been in operation for over ten years without planning permission.

The Council’s policy on enforcement when application is pending

13. The Council’s website says, “The council's decision to take enforcement action is discretionary and each decision to do so has to be justified as ‘proportionate' and ‘expedient'. This means that any action must be appropriate to the amount of harm caused by the alleged breach. Planning enforcement action cannot be taken simply because there has been a breach, particularly where this results in limited or no harm to local amenity”.
14. This means, the Council says, that it is unusual for planning enforcement action to be taken when a planning application is outstanding and a grant of permission is likely, particularly when, as in this case, it would affect the profitability of a business.

Noise nuisance

15. Complaints about noise are governed by the Environmental Protection Act 1990. On receiving a complaint about a noise nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance’. To do so, 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.

16. The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. This means that, sometimes, when a complainant is genuinely distressed, councils may find that, objectively, the noise is insufficient to amount to a statutory nuisance. We cannot find fault on that basis.
17. When a council officer visits, they will make an independent judgment as to whether the noise amounts to a statutory nuisance. They will consider the timing and duration of the noise as well as the volume. Councils may use sound measuring equipment though there is no statutory requirement to do so.
18. If a council decides noise amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop, though it may delay in doing so to allow a perpetrator to take remedial action. If a council decides that noise does not amount to a statutory nuisance it can continue to use informal intervention to try to solve the problem on the complainant’s behalf.

Anti-social behaviour

19. Anti-social behaviour (‘ASB) is often defined as acting in a manner which causes or is likely to cause harassment, alarm or distress. Councils, along with the police and registered social landlords, have a duty to control on-going ASB. This is a broad definition. Whether behaviour causes harassment, alarm, distress, nuisance or annoyance depends on the tolerance and sensitivity of the people experiencing it. Therefore, no one approach fits all circumstances.
20. Because different agencies have powers to deal with ASB, it can be unclear which organisation has taken the lead. If, for example, the police, have taken the lead in a case, it may be appropriate for councils to allow them to run an investigation. However, councils should keep this under review and, where appropriate, we would expect to see councils take action.
21. Section 17 of the Crime and Disorder Act 1998 says councils must have a team to respond to and investigate complaints about ASB, liaising with the police and other agencies as necessary.
22. When conducting investigations into ASB, councils should consider whether there has been genuine ASB, the risk to the complainant, whether there is a serious threat of harm and whether the complainant, for example, lives alone. They should also consider whether alleged perpetrators are likely to pose a risk or have their own vulnerabilities.
23. Councils can discharge their ASB duty using informal intervention such as mediation. They can also use the Environmental Protection Act 1990 in the case of noise nuisance. In more serious cases, they can use powers derived from the ASB, Crime and Policing Act 2014.

What happened

Introduction

24. Mr C has a shop in the Council’s area. He lives above the shop with his family which includes his wife, Mrs C and his daughter, Miss R. Adjacent to Mr C’s shop are two buildings owned or leased by Mr D and his relative, Mr E.
25. The building closer to Mr C’s premises, Building 1, was a food retail unit. Its permitted hours of business for more than ten years were 7.30 am until 2.30pm, Monday to Friday excluding public holidays. The building further away, Building 2, had been used as a fast-food takeaway restaurant for at least 25 years. Mr C says the two buildings are now connected and, at the time of this complaint, both Building 1 and Building 2 were operated as a takeaway often until the early hours of the morning.
26. Mr C and Miss R say they have suffered from the noise emanating from Building 1 and noise emanating from both buildings. They say the Council has not done enough to stop it. In order to try to control the noise, they had contact with the Council’s planning department and its environmental health department. I have presented the facts chronologically.

The facts

27. In June 2020, Mr D and Mr E installed a new extraction unit on the outside of Building 1. Mr C says the noise was so loud that it disturbed his family and made even watching television, conversation, and sleeping impossible.
28. Miss R says the family asked Mr D and his colleagues to reduce the noise. They say that Mr D and his colleagues were abusive and threatening and they called the police. They also say that there was loud music and conversation from the buildings late into the night. Miss R reported this to the Council. She says she did so for the first time in April or May 2020. The Council says it did not receive a notification until July 2020.
29. A Council officer, Officer O, visited Mr C’s house in August 2020. The Council’s records show that, at this time, the family had reported the threats and abuse to the police. Therefore, Officer O decided to deal only with the noise allegations, leaving the criminal matters to the police. He asked Mr C and Miss R to fill in noise diary sheets.
30. Miss R and Mr C did so and returned them four weeks later.
31. Mr C made a second report to the Council’s environmental protection department in September 2020. He said Mr D was operating a restaurant from Building 1 without planning permission and that the noise and smell of the fan was terrible.
32. Officers visited the site again unannounced. They say they found no evidence of a food business in operation in Building 1. There was no debris related to food and much of the equipment in the premises, visible through the window, was not plugged in. They asked Mr C and Miss R to fill in diary sheets.
33. The Council carried out investigations. The environmental health department discovered, in late September 2020, that Building 2 had never had planning permission to be used as a takeaway but, because it had been one for at least ten years, it would not be possible to take enforcement against Mr D and Mr E.
34. The Council wrote to Mr D and Mr E and told them to cease operations outside the hours permitted in the planning permission for Building 1. It said that, if they wished to continue operations, they should apply for planning permission to extend the hours of business.
35. The Council also wrote to Miss R explaining that it could not take planning enforcement action for the reasons given above.
36. The family filled in diary sheets for a month. They recorded that noise occurred daily, often from 8.30am until, on one occasion at least, 3am.
37. In October 2020, Mr D and Mr E applied for planning permission to extend the hours of opening to between 11am and 11pm seven days a week. The Council wrote to local people including Mr C and Miss R to ask them for their objections.
38. Also in October 2020, Mr C and Miss R made further allegations of ASB to the Council. The Council again responded and it is recorded that it considered that the ASB should be dealt with by the police.
39. While considering the planning application, the Council’s environmental health department recommended that the hours 11am to 11pm were likely to cause an unacceptable impact on local people and so recommended a reduction in the hours of business to lessen that impact.
40. In November 2020, officers from the Council’s COVID compliance team visited Buildings 1 and 2 and again found no evidence of any recent occupation in Building 1. They found it was closed with no access available.
41. In November 2020, Miss R made a further report of the two buildings to environmental health. She said there were noise and smells from the restaurant operation and the fan. She said the noise was so bad that the family could not hear the television and the smell was ‘foul’. She also complained of noise from heavy objects being dragged around.
42. The Council again asked the family to fill in diary sheets. Miss R again did so.
43. In December 2020, the Council’s environmental health department wrote to Mr C and Miss R and told them it was waiting for the outcome of the planning application before taking action
44. The Council’s planning enforcement team advised that enforcement action should not be taken while the planning application was pending as a grant of permission was potentially appropriate.
45. In January 2021, Miss R made a formal complaint to the Council about the Council’s failure, in her view, to take adequate action against Mr D and Mr E.
46. In late January 2021, the Council says, Mr D and Mr E opened up their business at Building 1 and began openly trading from Buildings 1 and 2.
47. The Council offered Mr C and Miss R noise monitoring equipment in February 2021. It remained in place for two weeks. After analysing the data, the Council informed Miss R that there had been a statutory nuisance caused by the fan at certain times of day.
48. Officer O contacted Mr D and Mr E and told them about the statutory nuisance and gave them a week to remedy the fan to avoid possible legal action. He also told them that the back door must remain shut to control odours and noise. He also asked them to move an ice chiller to reduce noise. He also investigated the family’s concerns about smoke from a charcoal burner.
49. Also in February 2021, the Council’s planning department told Miss R that it would not take formal planning enforcement action at Building 1 or 2 until the planning decision had been made.
50. In April 2021, Miss R made further noise complaints. She says she also made a further complaint of ASB. The Council's envirnmental health department investigated. The Council was, at that time, trialling its new noise app. Miss R downloaded the app and used it. The app showed that there was further noise nuisance but the Council accepted this had been caused by engineering work to make the fan quieter and by moving of equipment. These were, therefore, temporary.
51. The Council carried out further recordings in June 2021. An officer found that the original fan had been replaced with a smaller and quieter one and that the noise nuisance had ended. He informed the family in early July 2021.
52. At this point, Miss R complained to the Ombudsman on Mr C’s behalf. As her stage one complaint had received no response, we referred her back to the Council. She wrote to the chief executive and, two weeks later, received a response to her stage one complaint. The Council accepted that its response was late and apologised. It reviewed its handling of Miss R’s concerns over the previous year. It said:
    • 1. It had responded to Mr C’s reports of noise nuisance. At the time that Officer O became involved, he was aware that the police were dealing with ASB and so had dealt only with the noise aspect.
      2. The Council had taken adequate steps to investigate the environmental health concerns;
      3. The planning decision had not yet been made. Miss R continued to engage with the Council’s planning department. The decision would be made shortly.
53. In mid-July 2021, Miss R escalated her complaint to Stage 2. She received a response in late July. The Stage two response upheld the findings of the Stage one response. It added that delays in installing noise monitoring equipment had been agreed with Miss R because of the dangers to Mr and Mrs C of an installation team visiting their home.
54. Also in July 2021, Mr C and Miss R sent a formal objection to the planning application prepared by a planning consultant. They said the change of hours would severely impact on their enjoyment of their property and that of other local people. They also said it would have a negative impact on the character and appearance of the area and increase traffic.
55. In July 2021, a planning officer began work on a report which recommended a grant of permission for the site. In the report, the officer considered Mr C’s family’s objections to the changes. She considered the impacts on the area and relevant local and national planning policies. She issued the report in March 2022 recommending a grant of permission.
56. In February 2022, a local police officer wrote to the Council and said that he had received complaints of criminal behaviour from Mr C and Miss R against Mr D, Mr E and their colleagues. The Council corresponded with the officer and discussed whether the family should be advised of the ‘community trigger’. The Council contacted Miss R to inform her of her right to apply.
57. In March 2022, the Council granted planning permission for a change of hours at Building 1 allowing it to stay open until 11pm on Friday and Saturday and 8pm on Sundays and bank holidays.
58. There was a condition attached to the grant of planning permission that the noise from the fan should not be more than 5 decibels above background noise levels.
59. The Council says the planning department has sent noise diary sheets to Mr C and Miss R and have said that, if the business is breaching the terms of the new planning permission, it will investigate.

Was there fault causing injustice?

Failure to take enforcement action – noise

60. It is important to remember that, in 2020, the COVID-19 pandemic was causing great disruption to local authorities. The first lockdown did not end until June 2020. Considerable numbers of restrictions remained in place for the rest of the summer. The ‘rule of six’ was introduced in mid-September 2020 and the country would enter a second national lockdown in late-October 2020. All of this meant that much environmental health enforcement activity would have been difficult.
61. The Ombudsman’s position is that, while we understand that the pandemic caused councils considerable difficulty, it did not excuse them of their duty to fulfil their functions.
62. Mr C and Miss R say they first complained about noise from Buildings 1 and 2 in May 2020. The Council says that it has no record of any complaint until August 2020 and that it began its investigation of the complaint as soon as it learned of it.
63. I must make my decision as to who is right on the available evidence. Where a complainant and a council have different recollections of what occurred, I must weigh the available evidence and decide whose version is more likely to be true.
64. I have looked at all the Council’s files for planning and environmental health enforcement and there is no mention of any contact from Mr C before July 2020. Miss R did send the Council diary sheets purporting to be from April and May 2020 in 2021 but this is not evidence that the Council received them in early 2020. There is not enough evidence, therefore, for me to say, on balance, that Mr C or Miss R sent the sheets in May 2020. I cannot, therefore, uphold this part of the complaint.
65. Miss R also says the Council’s enforcement actions overall were inadequate. I do not accept that this was the case. The Council sent diary sheets to Miss R. Officers visited Buildings 1 and 2 in September and November 2020. They saw no evidence of food preparation in Building 1.
66. The Council says it could not install noise recording equipment in Mr C’s home before February 2021 because Miss R said Mr and Mrs C were at risk of COVID-19 until they had been vaccinated. The evidence supports this claim. I therefore find the Council responded adequately between September 2020 and February 2021 when it installed the noise monitoring equipment.
67. Thereafter, Officer O took proper steps to prevent the noise nuisance he had found.
68. Miss R says she also made an allegation of ASB in April 2021. I have looked at the file and cannot see evidence of this. There is an email from Officer O in which he says he is willing to look into other elements of her complaint if she gives him further details. This appears to be a proportionate response.
69. All in all, on the evidence, I find that the Council took adequate action to investigate the family’s concerns and that Council action persuaded Mr D and Mr E to carry out the required works.
70. Mr C and Miss R say the fan continues to cause noise but Officer O visited in May 2021 with a colleague and took sound measurements. They found that the noise from the replacement fan was within acceptable limits and that, therefore, further enforcement was not necessary.
71. This decision was one made by professional officers in possession of the facts who carried out the necessary investigation. It is clear that Mr C and Miss R believe that the noise is unacceptable but we cannot find fault on that basis. They can continue to report allegations of noise nuisance.

Failure to deal with antisocial behaviour

72. One of the challenges we face with ASB complaints is that it can be unclear whether a council, or the police, or a local social housing body, all of which have powers to deal with an issue, should take the lead. Councils sometimes tell complainants to report matters to the police. This is not always unreasonable; for example, if there is a real and immediate threat of harm.
73. But this does not mean councils can simply wash their hands of the matter. Even if a particular report or incident is better suited (in the immediate sense) to a police response, we would expect a council to maintain accurate records of the reports it has received, and, where necessary, follow up with the complainant(s) and other relevant bodies. Joint-working and information-sharing between authorities is a critical feature of an effective response to ASB.
74. In this case, Mr C and Miss R contacted the police about criminal aspects of their dispute with Mr D and Mr E before they contacted the Council. Indeed, Miss R says the police issued a restraining order and considered prosecution in 2020.
75. The records show that, when Officer O began his investigation, he knew about police involvement and decided to only investigate the noise aspect of Mr C’s concerns. This was a professional decision on the facts with which I do not intend to find fault. In this case, the police had clearly taken the lead at that time.
76. The records show that Miss R made several referrals to the police in 2021 and 2022 and received crime numbers from them. Therefore, it is clear that she continued to approach the police, rather than the Council, about these matters.
77. The records show that, in early 2022, a police officer contacted the Council about these reports. Over the next month, Council officers discussed the matter with the police and considered whether the community trigger would be met if an application was made. They contacted Mr C and Miss R.
78. In the circumstances, I find the Council was not at fault.

Failure to take enforcement action – planning

79. The Council says it first became aware of Mr C’s objections to the ongoing breaches of planning permission at Buildings 1 and 2 in mid-2020. It became aware, through investigation, that Building 2 did not have the necessary planning permission to be used as a takeaway restaurant but had been used as one for well over twenty years. This meant that Building 2 was immune from any planning enforcement action due to the use operating for more than 10 years.
80. The Council, on discovering Mr D and Mr E had breached planning permission certainly for Building 2 and possibly for Building 1, wrote to them and told them to stop and/or to apply for planning permission to regularise use and extend the business hours. This was proper action in the circumstances. I do not find fault.
81. The Council’s planning enforcement department then decided that enforcement action was not appropriate given that permission might be granted. This is a common practice of planning enforcement and in line with its policy. I do not, therefore, find fault.
82. In the event, the planning application was not decided for 19 months. The Council took no enforcement action during that time. Miss R says that this was fault but, as it caused no injustice to her or Mr C, I have not made a finding on this point.

Failure to properly monitor and assess environmental health issues

83. In my view, in this case, the Council took adequate steps to monitor and assess the issues. The Council’s duty was to respond to reports of noise or other nuisance. In my view it did so.

Failures in the complaints process.

84. The Council failed to respond to Miss R’s complaint for five months. She first complained in January 2021 and the Council did not reply until June 2021. The Council has accepted this and apologised.
85. This fault caused Mr C and Miss R injustice in that their concerns were not acknowledged or addressed during that period although Officer O continued to work on their behalf during that time.
86. The Council has agreed a remedy for the fault found.

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Agreed action

87. The Council has agreed to write to Mr C and his family within four weeks of the date of this decision and apologise for the fault found and the injustice caused. It has agreed to pay Mr C £200 in recognition of the injustice the family suffered.

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Final decision

88. I have found the Council at fault. The Council has agreed to my recommendation of a remedy. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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