Summary: Mr X complained the Council has failed to properly investigate or take appropriate enforcement action in relation to his reports of nuisance in the form of noise, heat and odours from a dry cleaning business operating in the building below his home. We found the delay in investigating Mr X’s concerns about heat affecting his property and the failings in communication are fault. These fault have caused Mr X distress and inconvenience and put him to unnecessary time and trouble. The Council has agreed to apologise and make a payment to Mr X.

The complaint

1. The complainant, Mr X complained the Council has failed to properly investigate or take appropriate enforcement action in relation to his reports of nuisance in the form of noise, heat and odours from a dry cleaning business operating in the building below his home.
2. Mr X complained the Council was slow to respond to this matter and has not kept him informed of any action it has taken.
3. He says the nuisance has a detrimental impact on his family’s health and wellbeing.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential 'statutory nuisances'.
9. Activities a council might decide are a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises; and
• smells and fumes from industry, trade or business premises;
10. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.
11. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an 'out-of-hours' service for people to contact, if a nuisance occurs outside normal working time.
12. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
13. The law says that a potential nuisance must be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the complainant because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
14. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices

15. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay issuing an abatement notice for a short period, to try to address the problem informally.
16. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
17. A person who receives an abatement notice has a right to appeal it in the magistrates' court. If they can show the court they have done everything reasonable to prevent or minimise the nuisance, the court may decide the abatement notice is not appropriate.

Planning Enforcement

18. 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.
19. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
20. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)

What happened here

21. Mr X has lived above a dry cleaner business for several years. He complains that in March 2024 the business expanded to take on large scale commercial contracts. He says it installed heavy duty machinery, hired more people and began operating for 13 or 14 hours a day Monday to Saturday and an additional six or seven hours on a Sunday.
22. These increased activities caused noise, heat and odour nuisance in Mr X’s property. Mr X has raised his concerns with the Council’s Planning Enforcement service, Environmental Health service, and Corporate Property service.

Planning enforcement investigation

23. Mr X contacted the Planning Enforcement service on 28 March 2024.
24. On 3 April 2024 the Planning Enforcement team opened an investigation into a possible breach of planning permission regarding the hours of operation. A condition on the planning permission allowed for use of the extraction duct between 8:30 am and 7pm Monday to Saturday only.
25. An officer visited the dry cleaners shop the same day. The owner told the officer they did not operate the machinery overnight and that the shop was open between 10 am and 4pm Monday to Saturday.
26. Mr X raised further concerns on 21 and 22 April 2024 about large deliveries of laundry in the evening and said the duct and washing machines were still operating at 8:30pm.
27. An officer visited the site again on 22 April 2024 to view the rear of the building. They noted there was an existing high level duct and five low level vents/ openings in the rear elevation. The officer then viewed the planning history for the property and wrote to the owners. The warning letter advised that the Council had reason to believe there was a breach of a condition of the planning permission as the extract duct had been operated after 7pm. The Council asked the owner to confirm within 28 days that they understood their obligations under the planning condition and that they were operating in line with the condition.
28. Mr X contacted the Planning Enforcement service again on 10 May 2024 alleging there was a hole at the back of the dry cleaners and work was being done.
29. The Planning Enforcement service asked the Council’s noise team to carry out a noise survey so that the noise levels of the duct which was subject to planning permission could be monitored.
30. The owner of the dry cleaners responded to the warning letter in late May 2024. They said that while the planning condition was not being breached, they would try to resolve matters.
31. In early June 2024 Mr X told the Council the dry cleaners had removed a window on the rear elevation and had installed a powerful fan in its place. He said the fire door at the rear had also been altered.
32. A Planning Enforcement officer visited the site on 6 June 2024. They noted the size of the rear fire door remained the same, but that the existing vent above the door was now covered with metal mesh wire. The Council advised Mr X it did not consider it was expedient to pursue enforcement action in relation this issue.
33. However, the Council wrote to the owners of the dry cleaners advising that the removal of the small window and its replacement with a ventilation fan required planning permission. The Council told the owner that if they intended to retain the works they would need to apply for planning permission within six weeks. Alternatively the fan should be removed and the window restored.
34. An officer visited the site again on 19 June 2024 after 7pm and monitored for about 20 minutes. They noted that throughout that time plant machinery to the rear of the property was in operation and audible. The officer was unable to determine which specific machinery the noise was emanating from.
35. The noise monitoring report subsequently confirmed the noise from the extract duct fan was not increasing the background noise at any time. The fan was therefore complaint with the relevant planning condition regarding noise levels.
36. A Planning Enforcement officer carried out a further visit on 7 August 2024, again after 7pm. The records show the owner provided the officer with access to the rear of the store where the officer noted the duct operating mechanism dial was in the off position. The power button for the unit was also off.
37. Mr X informed the Council that the window in the rear elevation which had been removed had now been reinstated. This was confirmed by an officer during a site visit at the end of October 2024. Mr X says that although the window was reinstated, the new fan was not removed.

Environmental Health investigation

38. Mr X contacted the Environmental Health team on 16 March 2024 to report constant drumming noise from the dry cleaners between 7am and 6pm every day apart from Sunday. He also complained about the smell of conditioner entering his property.
39. An Environmental Health Officer (EHO) visited Mr X’s property on 28 March 2024. They noted they could hear the noise of an extractor fan, but this was extremely low level and not a statutory nuisance. The EHO also contacted the owner of the dry cleaners who advised they would try and quieten the noise from the extract vent. The Council then closed the case.
40. Mr X reported further noise nuisance in mid-April 2024 so the Council reopened the case. An EHO visited both the dry cleaners and Mr X’s property on 19 April 2024. They again noted the noise in Mr X’s property was very low and not a statutory nuisance.
41. EHOs and officers from the noise team then visited Mr X’s property several times in April and May 2024. On each occasion they did not deem the noise to be a statutory nuisance. They could also smell fabric softener but again did not consider this to be a statutory nuisance. The EHO also visited and spoke to the owner of the dry cleaners during this period. The owner told the EHO they would look at ways of resolving noise escaping from their premises.
42. On 23 May 2024 the Council wrote to Mr X confirming that the noise did not meet the threshold to be considered a statutory nuisance. It was therefore unable to consider the matter further. Later the same day the EHO confirmed the Planning Enforcement service had asked them to carry out noise monitoring
43. The Council installed noise monitoring equipment in Mr X’s property from 6 to 13 June 2024. A noise officer then visited on 19 June 2024 to carry out a switch on and off test of the extract fan which was subject to the planning condition.
44. The noise report showed that noise associated with the dry cleaners often started at 7:30 am Monday to Saturday and the plant switches off between 8:15 and 8:45 each evening. There was some plant noise between 10 am and 4pm on Sundays but the survey was unable to identify the source or whether it was associated with the dry cleaners.
45. The assessment showed that levels during the midday were slightly above the threshold of likely adverse impact. However the plant and machinery noise was having a significant adverse impact in the early morning and evening.
46. A senior EHO visited Mr X’s property early in the morning of 18 July 2024 and deemed the noise from the dry cleaners was a statutory nuisance. EHO officers made further visits of an evening on 19 and 25 July 2024.
47. The Council installed heat data loggers in Mr X’s property from 17 to 29 July 2024 to monitor the temperature in his home. The readings showed that average temperatures were well above the recommended temperature for sleeping of 18 degrees Celsius. The Council concluded the flats above the dry cleaners were suffering from excess heat at a temperature that makes sleeping and other elements of normal day to day living difficult. This could be classified as a statutory nuisance.
48. On 12 August 2024 the Council wrote to the owners of the dry cleaners advising it had identified noise and heat causing a statutory nuisance to residents and that it may serve an abatement notice. The Council said it would defer issuing an abatement notice for seven days to allow the owner the opportunity to propose alternative methods of resolution.
49. As the Council did not receive a response it served an abatement notice in relation to noise and heat on 21 August 2024. The notice required the dry cleaners to abate the noise and heat within 28 days.
50. As the nuisance continued the Council reinstalled both noise monitoring equipment and heat data loggers in Mr X’s property in late September 2024. A senior EHO also visited Mr X’s property on 2 and 5 October 2024 to assess for a breach of the abatement notice.
51. The heat data logger readings again showed the internal temperatures were too high and the flats were still suffering from excess heat which could be classified as a statutory nuisance.
52. The noise monitoring report also confirmed that during morning and evening periods the plant and machinery were still have a clear significant adverse impact. This was despite some evidence the overall plant noise had been reduced since the last survey.
53. The Council then wrote to the dry cleaners again on 28 October 2024 asking what action it had taken to abate the nuisance. The Council referred the case to its legal services in November 2024 and in December 2024 began court proceedings for breach of the abatement notices. A court date was set for March 2025.

Corporate property investigation

54. The dry cleaners shop is part of the Council’s commercial property portfolio, which is managed by Company 1 on the Council's behalf. Mr X contacted Company 1 in late April 2024 to report increased noise and strong chemical smells from the dry cleaners. He also said they were operating 12 hours a day six days a week and had started working Sundays. Company 1 advised Mr X to contact his housing officer.
55. Company 1 also contacted the owner of the dry cleaners regarding possible breaches of the terms of their lease. It referred to the warning letter issued by Planning Enforcement and the relevant terms of the lease and asked the owner to confirm the actions they were taking. Company 1 chased the owner for a response. It also asked the owner to provide statutory compliance documentation, including a Fire Risk Assessment (FRA).
56. On 3 June 2024 officers from Company 1 visited the dry cleaners to discuss a possible breach of planning control. Officers visited again on 14 June 2024, having received the FRA, to discuss the required works. During this visit the owner told the officer they were not in breach of their lease.
57. Officers visited again on 18 June 2024 regarding the removal of a window to the rear of the building.
58. On 10 July 2024 Company 1 told the Council it had investigated the concerns but found no breach of the lease. It subsequently confirmed its position regarding trading outside permitted hours. Company 1 noted the relevant section of the lease used the words "trading”. The owner had confirmed they were not serving customers, but staff remained on site after closing. There was therefore no evidence of a breach of the lease. Mr X disagrees with this interpretation of trading and asserts it should cover both the interaction with the customer and the cleaning of the laundry.
59. Environmental Health notified the Corporate Property team when they served an abatement notice in August 2024. Corporate Property officers and Company 1 then sought legal advice regarding serving a notice under section 146 of the Law and Property Act 1925 to commence forfeiture proceedings, for nuisance. The advice was to allow the abatement notice process to complete ahead of any lease enforcement action.
60. When Environmental Health confirmed a court summons had been served in December 2024 the Council began preparing a s146 notice. The s146 notice was served on the owner in early January 2025.
61. Mr X is disappointed court proceedings did not commence sooner and that service of the section 146 notice was delayed.
62. The notice allows the owner of the dry cleaners a reasonable time to remedy the breach. The Council says that should the owner fail to challenge the notice or remedy the breach within this period it will explore making an application to court to issue proceedings.
63. The Council says the details of the legal action against the owner of the dry cleaners is confidential and cannot be shared with Mr X. It will update Mr X once the s146 notice has elapsed.

Complaints

64. On 25 June 2024 Mr X made a formal complaint about the Council’s failure to assist with his concerns about odours and heat from the dry cleaners. He also complained the EHO had told the dry cleaners they could operate on a Sunday so the nuisance had increased.
65. The Council responded to Mr X’s complaint on 10 July 2024. It was satisfied the Council had acted in line with its enforcement policy in relation to odours. But acknowledged it could have investigated further with regard to Mr X’s complaint of heat. The Council offered to install data loggers in Mr X’s property to monitor the temperature in his home.
66. In addition the Council said the EHO had not advised the dry cleaner they were able to operate on a Sunday. It said that when asked about operating hours the EHO had said there was no restriction on Sunday working within the legislation enforced by Environmental Health.
67. The Council assured Mr X that Planning Enforcement and Corporate Property were investigating the allegations that the dry cleaners were operating outside permitted hours.
68. Mr X was unhappy with the Council’s response. He accepted that some of his concerns were still under investigation but wanted to escalate the following concerns to stage two of the complaint process:
• A lack of communication from Corporate Property;
• For the EHO to retract their comments regarding operating on a Sunday;
• Inadequate assessment of the odours. Mr X said previous complaints about the dry cleaners had involved proper testing of the fumes, and asserted this should be done again.
• The floors of his flat were constantly hot and the excess heat was a health and safety issue;
• The dry cleaners were dumping rubbish overnight, blocking the fire exit;
• Noise from staff congregating outside their windows.
69. The Council reviewed Mr X’s complaint and responded in August 2024. It assured Mr X that the Council had been working collaboratively with all services involved to ensure there was a robust plan of action to address his concerns.
70. The Council then set out the action the different services had taken to investigate Mr X’s concerns. It confirmed Environmental Health had served an Abatement Notice in relation to the statutory nuisance from noise and heat.
71. Planning Enforcement had investigated concerns about a breach of planning conditions and determined there was no breach of conditions regarding the extract duct. Officers had also investigated Mr X’s concerns about a window being removed.
72. In terms of the hours of operation the Council confirmed the Corporate Property team would follow up on this to ensure the terms of the lease were adhered to. The Council apologised for any lapses in communication from the Corporate Property team.
73. The Council acknowledged Mr X had experience distress and inconvenience as a result of the ongoing nuisance and had spent time and trouble trying to resolve the matter. It offered to pay Mr X £200 in recognition of this.
74. In September 2024 Mr X asked the Ombudsman to investigate his complaints.
75. He also made a formal complaint to the Council about Planning Enforcement’s poor handling of the matter. The Council responded on 11 November 2024 and addressed his concerns in turn. It noted the planning permission for the installation of additional extract ducting granted many years ago imposes conditions regarding the noise generated by the ducting and the operation hours.
76. The Council said it had carried out a noise assessment of the duct, which confirmed it was operating within the permitted noise levels. There was therefore no breach of the planning condition so the Council could not take further enforcement action.
77. In addition, the Council noted there were no planning conditions controlling other noise arising from the operation of the property or heat levels. It noted these issues had been considered by the Council’s Environmental Health team.
78. In relation to the hours of operation of the extraction duct the Council said its investigation found the duct was switched off outside the hours of operation. As there was no evidence of a breach of the planning condition, the Council could not take any further action on this issue.
79. In relation to the rear window which had been removed and replaced with a fan, the Council noted it had issued a warning letter to the owner. As the window had now been reinstated there was no longer a breach of planning control and it did not propose to take any further action.
80. The Council said its investigations had revealed no evidence of any other unauthorised fans, vents or flues. It had now closed its files.
81. Mr X disagrees with Planning Enforcement’s conclusions. He also remains unhappy the Council took five months to determine the noise and heat are a statutory nuisance, and maintains the smell is also a statutory nuisance.
82. In addition, Mr X asserts that Corporate Property services should have acted swiftly to resolve the dry cleaners’ breaches of their lease and complains they failed to communicate with him or keep him updated of any progress.

Analysis

83. The Ombudsman does not act as an appeal body. It is not the Ombudsman’s role to decide whether there is a statutory nuisance or an enforceable breach; that is the Council’s job. We can only consider whether the Council investigated Mr X’s concerns correctly. We cannot criticise a council where officers have followed the correct procedures and reached a reasoned decision.
84. It is clear from the documentation that the relevant services at the Council have all investigated Mr X’s concerns. Officers have visited Mr X’s property, and the dry cleaners to witness the potential nuisances and alleged breaches of planning control and the lease.
85. Mr X disagrees with Planning Enforcements decision that there is no evidence of a breach of the planning conditions. However I am satisfied the Council has properly investigated this matter and taken account of all the relevant evidence in reaching its decision. The Council has established through noise monitoring that the noise from the extract duct does not exceed the levels permitted by the planning condition. And through visits that the extract duct was not operating outside permitted hours.
86. The planning conditions only relate to the noise from, and the hours of use of, a particular extract duct. Other machinery, equipment or vents which may cause noise are not covered by planning conditions, so the Planning Enforcement service would not be able to take any action.
87. Planning Enforcement officers also appropriately investigated concerns about changes to the fire door and the removal of a window and its replacement with a fan. These issues were resolved without the need for formal enforcement action.
88. The Environmental Health team has taken formal enforcement action in relation to noise and heat which amount to a statutory nuisance. The process of gathering evidence of these nuisances and issuing an abatement notice will inevitably take some time. The Council must have sufficient evidence and be satisfied it can successfully defend any challenges to the enforcement action it takes.
89. There is no evidence of delay or fault in the way the Council investigated the noise nuisance. The EHO’s who visited Mr X’s property between March and May 2024 did not witness a noise nuisance. However the noise monitoring equipment identified the noise had a significant adverse impact in the early morning and evening. This led to further visits in the early morning and evening, during which officers were able to confirm a statutory nuisance.
90. It is possible that had the Council been aware the noise levels differed over the course of the day the statutory nuisance could have been identified sooner. However, I have not received any evidence Mr X told the Council the noise was more significant in the morning or early evening. Or that he suggested the noise during their day time visits was not representative of the problem.
91. The Council acknowledge however, that there was a delay in investigating Mr X’s concerns about heat created by the dry cleaners. The Council offered to install heat data loggers in July 2024, following Mr X’s complaint. There is no evidence it had considered Mr X’s concerns about the temperature of his property prior to that. I consider this delay in investigating his concerns about heat to be fault.
92. It is possible that but for this delay the Council may have issued an abatement notice regarding the heat sooner. But it is also possible it would have considered it appropriate to wait and issue abatements notices for the noise and heat together. In any event I do not consider the delay in investigating the heat has affected the outcome as the dry cleaner has not complied with the notice and further enforcement action is necessary.
93. Mr X is also concerned about smells from the dry cleaners. The Council told Mr X that it does not use equipment to measure odours or smells. Instead officers carry out subjective assessments to assess whether the odour is causing an unreasonable interference with the use or enjoyment of a property. While officers have observed odours during their visits they were not assessed as being of a level that would constitute a statutory nuisance.
94. I recognise Mr X disagrees with these assessments, but they are a matter of the officers’ professional judgement. There is no fault in how the officers made these assessments and I therefore cannot question whether the decision was right or wrong.
95. Corporate Property officers have also investigated Mr X’s concerns. The documentation shows that while the service did not respond to Mr X’s communication, it did investigate the alleged breaches of the lease. The Council did not identify any breaches of the lease regarding the trading hours but has since begun enforcement action regarding the nuisance.
96. The Council apologised for the lapse of communication and advised Mr X to contact his housing officer who would liaise with Corporate Property. Mr X does not consider the information or updates provided by Corporate Property to be adequate. However, the records show officers outlined the action it would take once Environmental Health had summitted the legal papers to the court. Officers have also repeatedly advised Mr X they will not provide real time updates on the case but would keep him informed of material updates. And that the legal proceedings were confidential and details could not be shared with him.
97. While this is clearly frustrating for Mr X, who is understandably keen for the nuisances affecting his property to be resolved, we would not expect the Council to share confidential information about a third party with Mr X.
98. The Council has offered to pay Mr X £200 to recognise the distress and inconvenience caused to him and his family and the time and trouble he has been put to. I consider this to be an appropriate remedy.

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Action

99. The Council has agreed to:
• Apologise to Mr X for the delay in investigating his concerns about the heat from the dry cleaners affecting his property and the poor communication. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• If it has not already done so, pay Mr X £200 to recognise the distress and experience he has experienced and the time and trouble he has been put to in trying to resolve this matter.
100. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

101. I find fault causing injustice, The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman