Summary: Mr X and Ms Y complained the Council services had not done enough to help alleviate nuisance caused by a neighbouring food business. We upheld the complaint finding fault in the service provided by the Council’s public protection and planning services, causing distress. The Council accepted these findings and at the end of this statement we explain the action it has agreed to take to remedy this injustice.

The complaint

1. I have called the complainants ‘Mr X’ and ‘Ms Y’, who live in neighbouring flats. They are supported in their complaint by another neighbour I will call ‘Ms Z’. All three say that since December 2017 they have suffered nuisance from a neighbouring food business. They say the nuisance arises from:

• noise and vibration from an extractor fan unit and flue;
• cooking smells;
• internal noise from the food business (such as music playing);
• pests associated with fat that drips from the flue;
• building waste materials and other littering to the rear of the premises.

2. Mr X and Ms Y have contacted both Council planning and public protection services to request intervention. Their complaint is that despite these requests, neither service has taken effective action to stop the nuisance.
3. Mr X and Ms Y say the food business has a negative impact on their day to day life. They cannot enjoy full use of their flats because certain rooms suffer badly from noise and smells throughout the day and evening. They say this has also caused them mental and physical health problems.

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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 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. 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)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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

8. Before issuing this decision statement I considered:

• Mr X and Mrs Y’s written complaints to the Ombudsman and any supporting documents they provided, or information provided in telephone calls to this organisation;
• information provided by the Council in response to my written enquiries;
• relevant law, national guidance and Council policy referred to below.

9. I gave both the complainants and the Council chance to comment on a draft decision statement which set out my provisional thinking. I took account of any comments made or new evidence provided in response to the draft before I finalised my decision statement.

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What I found

Relevant law and policy

Planning Enforcement

10. Government guidance contained in the National Planning Policy Framework (NPPF) says that planning enforcement action is discretionary. Local authorities must act ‘proportionately’ when responding to breaches of planning control.
11. The Council has a local planning policy which says cases will be prioritised according to the harm to amenity caused by the alleged breach and resources available. It says: “investigations will be carried out proportionately in relation to the breach of planning control identified”. The Council will aim to resolve breaches of planning controls through informal negotiation where “appropriate and expedient” to do so.
12. The Council also has a planning enforcement protocol. The protocol explains the Council can use enforcement notices to try and secure compliance where development breaches planning controls. But for small businesses the Council says it must act ‘reasonably’ when setting time limits for compliance. The protocol explains that if someone appeals an enforcement notice then all action is held in abeyance until the appeal is heard. A national organisation, the Planning Inspectorate, considers appeals.
13. The protocol says the Council will inform the person reporting a breach of planning controls of its decision to close a case by letter, email or telephone. The protocol contains no service standards on how or how often officers should keep in touch with those reporting breaches while investigations are ongoing. The Council comments that during the events covered by this complaint planning enforcement officers have been managing high caseloads, sometimes up to 150 cases or more.
14. During this investigation the Council has commented on the thresholds it applies when taking planning enforcement action. These are when the Council is investigating an alleged breach of planning control (for example, an allegation someone has begun development without planning permission) from an alleged failure to comply with planning conditions. In the first case the Council needs evidence there has been an ‘apparent’ breach; whereas for the latter the Council needs clear evidence of a breach of a condition – so it works to a higher burden of proof.

Statutory Nuisance

15. Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990).The noise complained about may originate from various sources. For example, loud music, barking dogs, noisy neighbours or noise from industry, trade or business. Smells can also be a statutory nuisance.
16. For a noise or smell to be a ‘statutory nuisance’ it must do one of the following:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure health or be likely to injure health.

17. If the Council considers a noise or smell causes a statutory nuisance then it has the power to serve an abatement notice on the source of the noise. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice the Council may prosecute resulting in a fine.
18. In investigating reports of problem noise, the Council should follow guidance issued by government on “Neighbourhood Noise Policies and Practice for Local Authorities”. The guidance says that councils should ensure they keep “proper records […] to track progress of an investigation and action taken in a timely manner”. The guidance sets out a requirement of the Environmental Protection Act is for the Council to “take such steps as are reasonably practicable” to investigate alleged noise nuisance.
19. There is no set level at which a noise becomes a statutory nuisance. Suitably qualified officers must use their professional judgment. The government guidance says “in determining whether a noise problem amounts to a statutory nuisance, regard should be had to a number of factors, including:

• the level and type of noise;
• its duration;
• the time of day or night when the noise occurs;
• whether any aggravating characteristics are present;
• any particular sensitivity of the complainant; (Councils cannot take account that certain individuals affected by unwanted noise may have a greater sensitivity to it);
• the character of the neighbourhood where the noise occurs;
• the number of persons affected; […]”.

20. There are no objective criteria for when a smell becomes a statutory nuisance. Government guidance says that councils should take account of factors including:

• the strength of the smell;
• how often it’s detectable and for how long;
• when it’s recognisable;
• its offensiveness;
• its character (using descriptions like ‘fruity’ or ‘fishy’);
• the emission rate.

21. The Council’s Public Protection Team (PPT) investigate reports of nuisance of the kind described above. Food Safety Officers will also investigate reports of nuisance smells associated with food businesses. The Council says that when it is investigating potential statutory nuisance it will try and assess the impact in ‘habitable rooms’ (a term that usually refers to living rooms and bedrooms). Its officers will aim to attend in person and stay for a minimum of 15 minutes to assess the nature and frequency of any nuisance reported.
22. However, because of the COVID-19 pandemic the Council says that it has not been carrying out visits inside people’s homes. Instead, it aims to assess impact from ‘the nearest point’ outside the address reporting nuisance.

Chronology

23. In the next paragraphs I set out the key events forming the complaint. However, this is not intended to be fully exhaustive. It is a summary of the most important contacts between the complainants and the Council; as well as the actions taken by the Council in response.
24. I note at the outset that Mr X and Ms Y live in first floor flats located over a row of shops, some of which are used as food businesses. In May 2015 the Council gave planning consent for a shop below Ms Y’s flat to be converted for use as a food restaurant or take-away. Ms Z lives in a third floor flat located above Ms Y.
25. The 2015 planning permission required that before any food business started using the ground floor premises it should comply with certain conditions. These included providing “details and full specifications” of noise and vibration attenuation measures. The permission also specified a condition that noise from the premises should not exceed a specified level when recorded from outside the window of the nearest residential premises.
26. The premises below Ms Y’s flat, opened as a restaurant and take-away in December 2017. Within two weeks Mr X had contacted the Council to say the business caused a nuisance through noise from an extractor fan unit and cooking smells. The Council acknowledged his contact. Mr X contacted the Council again before the end of the month and said that vibration from the fan unit was a problem and he could hear noise from inside the food business.
27. By mid-January 2018 both a Council Planning Officer and officers from its PPT had visited the premises. An officer from the Food Safety Team also visited the business and Mr X’s flat, although I have not seen any details of that visit. The officers from the PPT visited the flats of Mr X, Ms Y and Ms Z. The notes of that visit recorded:

• noise from the extraction system was loud and unreasonably intrusive within both rear bedrooms above normal conversation and background noise levels; the notes imply this was from Ms Y’s and Ms Z’s flats;
• that no vibration from the extractor flue was observed;
• that no cooking smells were witnessed;
• that noise from the extractor flue system was ‘audible’ inside the bedroom and kitchen/office inside Mr X’s flat.

28. The Council’s PPT therefore considered the food business caused a ‘statutory nuisance’ to Ms Y and Ms Z. In early February 2018 it served a noise abatement notice on the food business. The notice required the owner of the business to “take reasonable steps to ensure noise from the refrigeration compressor/air conditioning units situated at the rear” of the premises did not cause such a nuisance.
29. Both Mr X and Ms Y remained in email communications with officers saying the business continued to cause a nuisance. In January 2018 the Council planning service had written to the owner of the food business asking them to cease the use and remove the unauthorised flue. When the owner did not act on this, the service went on to serve them with a planning enforcement notice (February 2018). The notice said the entire development (i.e. the use of the premises for a food business) was unlawful because the owner:

• had installed a flue and changed the shop front without planning permission;
• had not complied with the conditions attached to the 2015 planning permission (including that requiring details of noise and vibration attenuation measures).

30. The notice told the owner he should cease use of the premises as a food business and remove the unauthorised flue and shop front. The Council gave the business six months to comply with the enforcement notice. The owner could use that time to submit a planning application to try and regularise the use of the premises as a food business.
31. Mr X contacted the Council and asked what it could do in the meantime as he and his neighbours continued to suffer nuisance. An email in May 2018 from the planning service told Mr X the Council’s PPT could continue to investigate nuisance.
32. In August 2018 Mr X again contacted the Council about nuisance from the food business, sending his emails to an officer from the planning service. Those emails mentioned a concern that fat dripped from the extractor flue and attracted pests. Mr X copied Ms Y into his emails. The Planning Officer shared the emails with the PPT and asked if there was anything that service could do.
33. An officer from the PPT went on to contact Mr X. However, their contact was about the business opening hours and not the ongoing reports of nuisance from noise, vibration, smells and pests. I note in an email to the planning service sent at the start of September 2018, the PPT officer suggested Mr X was “not affected” by noise, smell or vibration from the food business. It suggested Mr X ‘claimed’ to act on behalf of others and the service had “advised the occupants of premises in close proximity that we would re-visit to re-assess the noise and vibration from the extractor flue system”. The email does not say when this advice was given and nor have I seen a record of this advice being given.
34. Next, the planning service told Mr X that the business owner had appealed the planning enforcement notice so there was no further action it could take at that time.
35. In December 2018 the owner of the food business lost their appeal against the planning enforcement notice. The planning service confirmed to Mr X soon after this decision that the owner now had until June 2019 to comply with the notice.
36. In April 2019 the owner of the food business submitted a planning application. This sought permission for continuation of the use of the premises as a food business and for the siting of a flue to the rear. The flue would be moved to a different location. The planning application said the flue would be fitted with anti-vibration brackets.
37. The Council asked for an expert noise and odour assessment to accompany the planning application. The owner provided this in July 2019. A Council Planning Officer, who was case officer for the application, asked the PPT to comment on the expert report. The PPT said it was satisfied as the report followed British Standards methodology.
38. Emails from July 2019 from the PPT to the planning service also say one of its officers was visiting the site again and would see “one of the complainants”. However, I have seen no record of this site visit nor what the officer from this Team observed or recorded at the time.
39. At the end of July 2019, the Council approved the planning application. It did so subject to certain conditions including:

• the owner remove the unauthorised flue and install the newly approved flue in the correct location within three months;
• that all building services plant should only be operated in accord with the expert report (the noise and odour assessment);
• that any plant be maintained in accord with details submitted by the applicant;
• that noise from any plant should not exceed specified levels at “the nearest noise sensitive premises” when measured in accord with the relevant British Standards methodology;
• one limiting any amplified sound, speech or music from the premises when measured from one metre outside the nearest noise sensitive premises; giving specific noise measurements.

40. In September 2019 the owner contacted the Council to say he had moved the ducting on the flue and moved the fan inside the premises. Within a week Mr X got back in touch with the Council to say that nuisance from noise, vibration and smells continued. The Council opened a second planning enforcement investigation at this point to investigate if the business complied with the July 2019 planning permission. However, it did not formally close its initial investigation until January 2021.
41. The Council planning service consulted the PPT. It said that it needed opinion from that service to decide if the business complied with the July 2019 planning conditions. Several further contacts from Mr X and Ms Y followed over the next month. In November 2019 the PPT said the service would “revisit and reassess”. A series of emails followed with Mr X where the service tried to arrange a visit on a day when all occupiers of the flats above the food business would be at home.
42. In November 2019 the Council planning service contacted the owner about the repositioned flue. Its enforcement officer noted a wider section of the flue not shown on the approved plans. In correspondence over the following weeks the owner said this was a silencer. The Council asked the owner to remove the section or submit amended plans. I am not clear from the case papers what happened next, but I note in recent photographs of the flue the wider section has been removed.
43. In January 2020, the PPT acknowledged further contact from Ms Y about loud vibrations and noise emissions from the food business. The Council went on to visit Ms Y in early February 2020. It said it found no evidence of statutory nuisance. Its notes say noise from the extractor fan was “barely audible” in her living room and bedroom.
44. In May 2020 Mr X contacted the Council planning service again. He said the food business continued to cause nuisance and was not complying with those relevant planning conditions attached to the July 2019 planning permission summarised above. The planning service contacted the PPT, whose officer said “he was satisfied” the business was complying with planning conditions. He said the most recent visit had not found complaints about nuisance ‘justified’. He said on the last visit noise from the business did not exceed background levels.
45. The PPT wrote next to Ms Y to explain their contacts with the business owner, who had also said the premises contained only a small CD player as a source of noise from inside. The Council said it would “revisit the complaints” about nuisance once it lifted COVID-19 visiting restrictions.
46. In June 2020 Mr X raised further concerns about smells from the premises and said dripping fat from the extractor unit attracted rats, birds and mice.
47. In March 2021 there were further contacts between the planning service and PPT, as the complainants continued to describe adverse effects from the business. The planning service again said it needed input from the PPT to decide if the business complied with the July 2019 planning conditions.
48. In July 2021 the Council visited the business premises and found the ventilation system used by the business was properly serviced and maintained.
49. In August 2021 the Council twice visited and an officer from the PPT stood in the communal hallway serving the complainants’ flats and visited the business premises. They did not observe any vibration from inside the food business. They were unable to assess the impact of the machinery from inside the flats due to the ongoing visiting restrictions caused by COVID-19.
50. Around this time the nature of the food business changed. Mr X and Ms Y report that despite the business now selling different food, they still suffer noise, vibration and smells from the business. They have also reported the extractor fan is on for more hours in the day, contrary to the planning conditions. Mr X has also sent me photos showing piles of rubbish behind the premises.
51. The PPT has visited the premises since the change of food being cooked and says it has found no evidence of other food being cooked on site. The PPT said it found no sign of pest activity in the business and has seen certification showing the ventilation system has been serviced and maintained.
52. In recent months Mr X reports another food business has begun preparing food from the premises. It has asked Mr X to log the hours when the extractor fan operates. It has asked the PPT to measure noise levels when it can again visit the flats. It has also asked that service to check if the extractor flue still has suitable anti-vibration mounts (saying these were considered suitable in 2019). It is also considering if there has been a change of use at the site.

Findings

53. I make no criticism of the Council’s initial response to the reports of nuisance from the food business reported by Mr X and Ms Y. I find within four weeks of the initial reports the Council had visited their flats and there are records of effective liaison between its planning service and PPT. I also find both services explained the action they intended to take to Mr X and Ms Y.
54. I also find that within a further month of that initial response, both services had taken decisive action aimed at protecting Mr X, Mrs Y and the other residents affected by the food business. The planning service threatened an enforcement notice and the PPT issued a noise abatement notice. I consider between them these services made clear the impact the food business was having on residential neighbours was unacceptable. They put the owner of the business on clear notice of the Council’s expectation they should remedy this.
55. I also find the planning service followed up in reasonable time in serving a formal enforcement notice when the food business did not cease operations as requested. I appreciate from the complainants’ perspective they maybe saw three months (from the time the business opened) to service of an enforcement notice as too long. But I consider there was no fault in officer’s actions here which had to take account of national and local guidance which stresses the need to try and resolve planning breaches informally if possible and to consider the impact on small businesses. For the same reason I find no fault in the enforcement notice giving the food business six months to comply.
56. However, I have three concerns about the extent of the initial contacts from the PPT which justify a finding of fault. First, it was clear from the outset that the complainants’ concerns about the food business went beyond the noise from the extractor fan and they considered any nuisance did not just affect Mrs Y. It is also clear from the notes of the visit that the Council officers did not share these wider concerns. They did not think any statutory nuisance extended to Mr X’s flat, situated further away from the source. Nor did they think there was a nuisance from vibration, smells or noise from inside the food business. But I cannot see this was explained to the complainants.
57. Second, I also note some discrepancy about the exact source of the problem noise on the abatement notice itself. Both Mr X and Ms Y referred to problems caused by a mechanical air extraction system and flue; and this is what the officers’ notes referred to. But the abatement notice does not mention this but instead refers to nuisance from a refrigeration compressor and/or air conditioning unit. I consider this is probably a mistake in the drafting of the noise abatement notice. But it is one that may have made it harder to enforce against.
58. Third, as I noted above the Council has not clearly explained the input of its Food Safety Officer when they visited Mr X in January 2018 following his complaint of smells from the food business. There is no record of what that officer observed or how they reported their findings either to colleagues in the PPT, to Mr X or to the business concerned.
59. I consider the poor communications of the PPT were then compounded in the months that followed. In May 2018 the Council clearly told Mr X that while the planning service had to let the enforcement notice run its course, the PPT was not similarly bound. I do not find evidence Mr X and Ms Y got back in touch with that service straight away. But by August 2018 the PPT was aware of Mr X’s view that the food business still caused him an unacceptable nuisance. I also note for the first time Mr X mentioned concerns that fat dripped from the extractor flue attracting unwanted pests. I note Mr X copied in Ms Y to his emails implying he spoke for them both.
60. I find the response Mr X received to his contacts around this time inadequate. The PPT missed an opportunity at that time to revisit and to reconsider the extent of nuisance caused by the food business, including the new concern raised about the impact of fat dripping from the flue. They also failed again to explain to Mr X the limits of where their previous investigation had established any statutory nuisance. The PPT implied in an email to the planning service in September 2018 that it had been in contact with Ms Y and intended to visit again. But I have seen no records to support this account. Overall therefore I conclude that service missed an opportunity to re-investigate whether the food business caused an ongoing statutory nuisance through noise or any other source. This was a fault.
61. Until July 2019 there were no further significant developments in the case. I find the planning service continued to correspond reasonably with Mr X and his neighbours, giving clear advice on the revised timescale the owner of the food business had to comply with the enforcement notice once they lost their appeal.
62. I note there was also some involvement from the PPT around that time. It commented on the planning application and I find no fault in that. But it also indicated as part of its consideration it had visited the site again and possibly planned on speaking to at least one of the complainants. But there is no record of that visit. So it is not clear whether its officer was of the view the statutory nuisance continued nor whether they could satisfactorily assess that or consider the other potential nuisances reported by Mr X. This further failure in record keeping was a fault.
63. I find no fault in the Council’s decision to give planning permission to the food business in July 2019. It is clear the planning service were mindful of the potential for the business to cause nuisance to neighbours. It required the applicant to submit documents showing how the business could operate without causing nuisance through food and smells by following expert advice and using suitable plant and machinery. I find the Council imposed appropriate planning conditions designed to ensure this result.
64. But since this time, and despite the owner of the food business subsequently making changes to the extractor unit, which includes moving it, the complainants say the nuisance they experience has continued.
65. The Council’s planning service has not decided if the operator of the food business is breaching the planning conditions imposed on their business in July 2019. I find it clear from the chronology set out above the service has periodically sought to answer this question. And I find there is an absence of evidence that would clearly point at a breach given the advice it has received from the PPT.It is reasonable for the planning service to defer to the PPT on whether the more technical planning conditions around noise are satisfied given it has the necessary expertise in these matters.
66. But I find a confusing picture has emerged about the planning service’s ongoing involvement in this case. While I understand why an investigation into a breach of the 2015 planning consent has been closed it was not clear until we investigated if it had opened a second investigation into the alleged breaches of the 2019 permission. Its communications to Mr X and Ms Y are no help in this regard and nor was the report into the closure of the planning enforcement investigation in January 2021. It was fault for the Council not to communicate this to Mr X and Ms Y in line with its enforcement policy.
67. I am also concerned at the lack of audit trail around the planning service asking the owner of the food business to remove a silencer from the extractor flue. I understand in planning terms why the silencer was of concern as it was not shown on the approved plans. So, there was no fault in the service raising the issue with the owner in the way it did. But given the history of the case I am surprised to find no reference of communications with the PPT around this matter to ensure that removing the silencer from where it was initially fitted did not have an adverse impact on the complainants. That was a fault.
68. These poor communications are compounded by ongoing poor communications from the PPT. I recognise that service did try to undertake a visit in November 2019 and it appears this did not take place because of difficulties in co-ordinating a time when all residents affected would be at home. It is also reported Ms Y said the nuisance had abated although the Council has not provided a record that shows when she reported this. So, I find there may be some justification for why no further visit took place until February 2020. But I am not clear how the Council reported back to Ms Y following that visit where it found there was no ongoing evidence of statutory nuisance. That was a fault.
69. I recognise the COVID-19 pandemic has subsequently imposed restrictions on the PPT being able to visit Mr X and Ms Y in their flats. There is no fault in that. But I find that nonetheless, throughout 2020 there was a lack of clear communication from the PPT setting out their view that they did not consider the food business likely caused a statutory nuisance - based presumably on the February 2020 visit. I also cannot see it took any action in response to the June 2020 report of fat dripping from the flue (something which may be observable without going inside any flats). Any investigation appears to have drifted until Spring 2021, and I find it is mainly due to the persistence of the complainants and not because of active case management by the Council, that any further investigation has resulted. That too leads me to find fault.
70. However, I cannot find fault in the visits or communications which have taken place more recently, in particular since the nature of the food business changed in August 2021. But there is a need moving forward for both services involved in this case to better communicate with the complainants until such time as they have reached a definitive view on whether there are any ongoing breaches of planning conditions, a change of use has taken place requiring planning permission or decided if there is evidence of statutory nuisance.

Injustice

71. In summary I have found fault in the actions of the planning service for the reasons set out at paragraphs 66 and 67 above. I do not find any injustice results which would have changed the decisions taken by that service in relation to the food business. However, the examples of poor communication will have added something to Mr X and Ms Y’s distress, time and trouble. The Council accepts this finding and I set out below the action it has agreed to remedy that injustice.
72. I have found fault in the actions of the PPT for the reasons set out at paragraphs 56-58, 60, 62, 68 and 69. I consider similar considerations to those set out above in respect of the planning service apply when thinking about the impact of the communication failings.
73. However, an additional consideration applies when considering the PPT actions and record keeping between August 2018 and February 2020. Throughout this time the PPT knew of reports of ongoing nuisance from premises where it had previously served a noise abatement notice but kept no clear record of its inspections to see if the statutory nuisance continued. I consider on the balance of probabilities that had the PPT re-investigated before September 2019 it would have found the statutory nuisance continued. Because there is no indication in that time-period the owner of the business took any steps which would have abated that nuisance.
74. As a result, I consider but for the fault the Council would have acted more decisively, at least until April 2019, to the benefit of Ms Y (who was found previously to have suffered statutory nuisance). I find the balance of what action the Council would have taken would have changed after April 2019, as this when the food business put in a planning application. This proposed changes to the flue and so was a vehicle for nuisance to be reduced. I consider this would have influenced the approach taken by the Council.
75. It will be a source of distress to both Mr X and Mr Y the Council has no adequate record of its consideration during these months. But for the reasons set out in paragraph 74 above I consider the impact on Ms Y greater.
76. The Council accepts these findings also and I set out below the action it has agreed to take to remedy that injustice.

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Agreed action

77. To remedy the injustice set out above the Council has agreed that within 20 working days of this decision it will:
1. apologise to Mr X and Ms Y accepting the findings of this investigation;
2. it will pay each £200 in respect of the injustice caused by its planning service;
3. it will pay Mr X £500 in respect of the injustice caused by its PPT;
4. it will pay Ms Y £1450 in respect of the injustice caused by its PPT;
5. it will commit to completing an investigation into the impacts of the food business on both complainants in line with what is set out in paragraphs 79 and 80 below.
78. In addition, the Ombudsman has powers to recommend remedies for others affected who have not complained directly to us. The Council has agreed in the light of this to also offer Ms Z an apology and payment of £700.
79. The further investigation agreed at paragraph 77 will consider whether the food business is:
1. operating in breach of July 2019 planning conditions;
2. operating in such a way as to constitute a change of use from the existing planning permission;
3. responsible for any ongoing statutory nuisance or any other breach of environmental health law (for example in relation to pest nuisance or littering).
80. The Council will appoint a senior officer, preferably with no previous involvement in the case, who will liaise between the services and act as a single point of contact for the complainants. They will oversee the further investigation and provide the Council’s response into the following:

• whether the food business is operating in breach of any planning conditions relating to its hours of business; use of mechanical plant or other potential sources of noise nuisance; (where the planning conditions require specific measurement of noise the Council should ensure it takes such recordings to demonstrate whether a breach is occurring);
• whether the food business is operating in such a way so as to conclude a change of use has occurred at the premises;
• whether the food business causes a statutory nuisance to neighbours in view of any noise or smell being emitted;
• whether the food business is in breach of any other environmental health law in view of the reports of fat dripping from the extractor flue or litter to the rear of the premises.

81. There is no agreed time limit for how long this investigation will take as it will require a visit to the properties in question. I understand matters the Council has not yet lifted restrictions in place on site visits because of COVID-19 and the impact of the pandemic over the coming months remains unknown. But the Council will ensure that at least once every six weeks it updates Mr X and Ms Y on progress. And in addition, in the event the Council identifies any breach it will confirm what action it proposes to take and indicate time limits for the same.
82. Finally, the Council has agreed to learn lessons from this complaint. I do not consider it need consider any wide-ranging review of its planning enforcement protocol or its policy for responding to reports of statutory nuisance. But it has agreed to consider what minimum standards both services should adopt for keeping in touch with those who report potential breaches or offences taking place and consider how it can incorporate such service standards into existing policies. This is important as investigations into such matters can often last several months. The Council will write and tell us what action it proposes to take here within three months of this decision.

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Final decision

83. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr X and Ms Y. The Council accepts these findings and has agreed action that I consider will remedy that injustice. I can therefore complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman