Summary: Mr X complained about the Council’s response to his reports of excessive noise and a planning breach relating to premises close to his home. We have not found fault by the Council.

The complaint

1. Mr X complains about the Council’s response to his reports and complaints about noise levels and planning issues relating to extraction and air-conditioning systems installed at commercial premises close to his home. He says the Council:
1. delayed investigating his complaint and identifying that parts of the system had been installed without the required planning permission;
2. delayed taking enforcement action for the breach of planning control; and
3. failed to properly investigate his complaint about excessive noise from the extraction and air-conditioning systems.
2. Because of the delays and failures, he and his family have been affected by the excessive noise since he first reported this to the Council in June 2024. They have been unable to open windows during the summer months and enjoy their garden because of the noise.
3. Mr X wants the Council to properly complete its investigation of his complaints, take effective action to stop the excessive noise and deal with the planning control breach.

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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.
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. 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(1), as amended)

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What I have and have not investigated

8. I have investigated what happened from June 2024, when Mr X first reported his concerns about this noise to the Council, to July 2025, when Mr X brought his complaint to us and the Council issued its final response to his concerns.
9. I have not considered any complaint about events after July 2025. These are new issues and would have to be raised first with the Council as a separate complaint.

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How I considered this complaint

10. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
11. 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

What should have happened

Statutory nuisances

12. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
13. Activities a council might decide are a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.

14. 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.

15. 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.
16. 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.
17. 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.
18. 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.

Section 82 of the Environmental Protection Act 1990

19. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
20. This process does not involve the council, but it is good practice for councils to tell complainants about their right to take private action.

Planning enforcement

21. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
22. 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.
23. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
24. 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 December 2024, paragraph 60)

What happened

25. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

June to August 2024: Initial investigation of Mr X’s noise complaint

26. Mr X’s garden backs on to a service road running behind a number of businesses, which include a fast-food shop (the premises). In early 2024 the Council approved the premises’ planning application for the installation of an extraction system.
27. In June 2024 Mr X contacted the Council’s Environmental Health (EH) team about noise from the extraction system at the premises. He said the system was generating noise late into the night, which could be heard in the service road, his garden and, when the windows were open, his house. He asked EH to investigate this.
28. In response to Mr X’s report, EH’s records show:

• it noted, from the planning application, the extraction system was approved on the basis it would create a noise level of approximately 35 decibels (dB) at the outlet. If the system was creating more noise than this, it had not been set up in accordance with the permission;
• an officer made a site visit and reported back to Mr X. They said the system was not making any considerable noise at the time of their visit. They arranged for Mr X to record the noise using the Council’s noise app; and
• it reviewed Mr X’s noise app recordings, made further site visits and enquiries of the businesses. It confirmed to Mr X in August 2024 the noise he was hearing was being generated by the premises’ extraction system.

August to September 2024: further investigation of the noise complaint

29. EH made further investigations into the noise levels generated by the extraction system. It installed noise recording equipment inside Mr X’s home.
30. The equipment and recordings were collected from Mr X in late September.

November to December 2024: review of the noise recordings

31. An officer reviewed the recordings and noise levels. They noted the extraction system noise of 40dB was not significantly above background noise levels.
32. The officer discussed the evidence from the recordings with Mr X. They explained why this evidence meant they could not take action on the basis the noise was a statutory nuisance.
33. Mr X referred to the planning permission based on the noise level not being more than 35dB. He also queried whether the recordings were a fair representation of the noise at different times and in different parts of his house and garden.
34. EH arranged and reviewed further noise recordings. The officer confirmed the extraction system noise was within the range of background noise levels. In their view it was still difficult to suggest there was a statutory nuisance which required legal action. But they would consider any other actions.

February to May 2025: Mr X’s further contact

35. Mr X told EH in February he was considering legal action and asked about the next step. He also said the background noise level had dropped.
36. EH confirmed to Mr X it would consider the planning background and carry out another on-site survey and noise level analysis. Between March and May it:

• carried out a site visit and installed noise recording equipment;
• reviewed its, and Mr X’s, noise recordings and noted differences in noise levels and the type of noise;
• following another site visit, identified the current noise might be coming from the air-conditioning system not the extractor system; and
• updated Mr X about the site visit. It advised the current noise appeared to be coming from a different source and further investigation was needed.

May 2025: Further investigation

37. Mr X asked for an update on progress of EH’s further investigations. He told it the noise levels were 60dB in his garden every day and they had to close the house windows at night. He said the Council should take action if there was a planning issue.
38. In its response to Mr X, EH said:

• it had visited the site again. The extraction system, which had been the previous source of noise, was not creating the current noise. This was a new noise which might be coming from the air-conditioning system and needed further investigation;
• the noise levels from the survey it had undertaken with him in the garden were 46dB; and
• its evidence was this noise level was in line with background noise, and not a statutory nuisance.

39. EH checked the premises’ records with the planning team. It was noted planning permission had been granted only for the extraction system. The air intake flue and air-conditioning system installed alongside the extractor system were not included in the planning approval.
40. Following a further site visit, EH confirmed the extraction system was not the source of the noise now. The noise currently complained about was an electrical noise, possibly coming from the air-conditioning system.

May 2025: Mr X’s complaint to us

41. Mr X had complained to the Council about its assessment of the impact of the extraction system when deciding the 2024 planning permission.
42. In his complaint to us he said:

• he and his family were being affected by noise pollution from a nearby shop’s extractor fan and air-conditioning unit installed without planning permission. The Council had failed to monitor the planning breach;
• the Council had failed to protect them and other residents from this noise coming from an illegal commercial system which had been installed without planning permission; and
• EH’s investigation of the noise issue had been slow. It was obvious where the noise was coming from, but the Council would not take action because it said it wasn’t loud enough.

June to July 2025: EH and Planning’s actions

43. During this period:

• EH took photos of the extraction and air-conditioning systems. It had discussions with the premises’ owner about the issues and the extraction system cleaning records;
• EH visited the premises and Mr X’s garden and made enquiries about noise from both the extraction and air-conditioning system. Its notes say on one visit noise from the air-conditioning unit, when turned on, could not be heard in Mr X’s garden. On another visit there was only a slight noise which was not audible when the wind was blowing or loud enough to constitute a statutory nuisance;
• in response to his complaint, Planning told Mr X it accepted: it had been wrong in its assessment to say the flue could not be seen from nearby properties; and there was a potential breach of planning control. This had been referred to its planning enforcement team for investigation; and
• Planning told the premises’ owner the air-conditioning system and intake flue were not shown on the approved plans and there was a breach of planning control. It said they should either remove these systems or seek retrospective planning control.

July 2025: Council’s final response to Mr X’s complaint

44. In its final complaint response, the Council said:

• its planning enforcement team had invited the premises’ owner to submit a retrospective planning application for the installation of the unapproved equipment;
• the team would then decide the outcome of any application submitted and whether it was expedient to take further action in line with the Council’s enforcement policy; and
• it replied to other points raised by Mr X (which are not relevant to this complaint).

Current position

45. The premises’ owner has submitted a retrospective application for planning permission for the systems installed without approval. This application had not been determined as at the date of this decision.
46. EH looked into a report of a new noise from the extraction system. It told Mr X this appeared to have been caused, in part by dirty blades and the premises had now provided the deep cleaning records. Mr X confirmed the noise was much better. It was agreed with EH the noise complaint case would be closed.

My decision – was there fault by the Council causing injustice?

Planning enforcement action

47. I consider the Council took appropriate action when it became aware of the potential breach because its Planning team properly investigated the report and:

• confirmed the equipment did not have the required planning approval;
• notified the premises’ owner of the breach and that they should either remove the equipment or apply for retrospective permission; and
• informed Mr X about the outcome of its investigation.

48. I have not found fault by the Council in its response to the planning control breach relating to the systems installed at the premises without approval.

Response to the noise complaint

49. I consider the Council responded properly to Mr X’s noise complaints.
50. It investigated his complaint and established the sources of the noise. It gathered and assessed the evidence required for its officer to exercise their professional judgement to decide whether a statutory nuisance existed.
51. Having properly, in my view, made its decision about whether the noise from both the extractor and air-conditioning system was or was not a statutory nuisance, it then considered other informal action it could take to resolve the noise issues. It continued to work with the premises’ owner to ensure they carried out maintenance work to the systems which reduced the noise levels.
52. I understand Mr X is concerned about the time taken to deal with his noise complaints. But given there were different sources of noise, at different levels and at different times, I don’t consider there was any unreasonable delay.
53. My view is the Council took reasonable steps to investigate the potential statutory nuisance, and I have not found fault with the Council’s response to Mr X’s noise complaint.

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Decision

54. I have not found fault with the Council.

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Investigator's decision on behalf of the Ombudsman