Summary: Mrs X complained about odour and noise from extractor fans at a fish and chip shop behind her home. The Council was not at fault for the way it investigated the potential nuisance.

The complaint

1. Mrs X complained on behalf of herself and neighbours about odour and noise from extractor fans fitted to commercial premises behind her property. She said the Council asked for works to be done to reduce the noise and odour nuisance, but there has been no improvement to the odour and only a slight improvement to the noise.
2. Mrs X said she and her neighbours cannot use their rear garden or open windows as a result.
3. In her complaint to the Ombudsman, Mrs X also raised concerns about:
• Noise from children congregating at seating the fish and chip shop owner had installed in front of the premises, and;
• Nuisance from a security light at the fish and chip shop which shone into a neighbour’s premises.

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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. 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

6. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Environmental Protection Act 1990 (Section 79).
• The Council’s procedures for investigating nuisance complaints.
7. I wrote to Mrs X and the Council with a draft of this decision and considered their comments before making a final decision.

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What I found

8. Under section 79 of the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance. The potential nuisance must unreasonably and substantially interfere with the use or enjoyment of a home or other premises or injure health or be likely to injure health. Statutory nuisances can be caused by issues such as:
• Smoke;
• Dust, steam, smell or other effluvia arising on industrial, trade or business premises;
• Artificial light;
• Noise
9. Generally, the statutory nuisance will need to be witnessed by an environmental health officer. The officer should come to an independent judgement about whether a nuisance exists by considering factors such as duration, intensity, location, and the time of day it occurs. If an officer decides a statutory nuisance is taking place, they must issue an Abatement Notice.
10. Businesses can offer a defence against an abatement notice by showing they operate using the best practicable means to prevent the nuisance.
11. Under the Council’s procedures, when it receives a nuisance complaint its officers must determine if somebody is acting in an unreasonable manner. An officer will contact the source of the potential nuisance to resolve the matter informally. If unsuccessful, the complainant will be asked to complete diary sheets to help establish the frequency, duration and impact of the nuisance. The officer will then visit the complainant to assess whether there is a statutory nuisance. If substantiated, an abatement notice will be issued. If not, the investigation will end.
12. Under section 82 of the Environmental Protection Act 1990, a member of the public may bring a claim of statutory nuisance in the magistrates’ courts.
13. Planning permission is required to place tables and chairs on the public highway, which includes the pavement.
14. Planning enforcement is discretionary. Formal action should happen only when it is 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.

What happened

15. Mrs X lives in a row of residential houses. Behind Mrs X’s property is a small shopping precinct containing business units, including a fish and chip shop. The fish and chip shop is the end unit, closest to Mrs X’s property, and the side borders her back garden.
16. Mrs X complained to the Council in May 2017 because the owner of the fish and chip shop had installed two chimneys close to Mrs X’s property and other residents. This was causing noise and odour nuisance.
17. Council officers visited the site on the 6th, 12th and 14th June 2017 and confirmed the presence of odour and noise. The Council found the owner of the fish and chip shop must have odour and noise mitigation and it started an investigation into what measures the owner had in place. It brought the matter to the attention of the planning enforcement department, to investigate whether the owner had complied with planning conditions.
18. The Council visited the fish and chip shop on the 26th June 2017 to inspect the odour and noise equipment in use. The Council found planning conditions were not complied with and told the owner to carry out works to reduce the noise and odour.
19. The Council wrote to Mrs X to tell her the fish and chip shop owner had completed the works on the 4th July 2017.
20. Following the improvement works, a Council officer visited Mrs X’s property on the 12th July 2017. They reported no odour. There was an audible hum, but this was not a statutory nuisance in the officer’s opinion. The Council told Mrs X to ask for another visit to her property if the nuisance continued.
21. Mrs X contacted the Council again on the 29th August 2017. She said the noise was still an issue and the smell was worse depending on wind direction. She said sporadic visits to assess the problem were not helpful and the Council needed to be there for a week to understand the problem.
22. Mrs X emailed the Council on the 10th October 2017. She said the smell was worse when the wind was blowing in a South East direction and she had noticed this several times when driving home from work in the evening.
23. The Council responded on the 11th October 2017. It asked Mrs X to get in touch to arrange for an officer to visit on an evening, when the smell was worse.
24. The Council contacted Mrs X on the 27th October 2017. It said to progress matters an officer would conduct a site visit on the 4th December 2017 between 6 and 7pm.
25. Mrs X wrote to her MP for help on the 20th May 2018. As well as the issue with noise and smell, Mrs X asked her MP to raise further issues with the Council. These were:
• whether the shop had planning permission for the chimneys;
• If the benches outside the shop could be removed;
• If the owner could move or remove a security light.
26. The Council wrote back to the MP on the 21st August 2018. It confirmed the owner has planning permission to trade there and the Council does not own the building, so cannot ask them to move. It said the owner had not completed works set out in the planning consent, so it had referred the matter to the planning enforcement department. The owner improved the extraction system to reduce noise and odour. The Council pointed out the area was a mix of residential and commercial properties. This meant there would sometimes be noise and smell. It said it had received no complaints about the security light and the affected party could contact the Council and it will investigate.
27. Mrs X complained to the Ombudsman on the 14th November 2018. The Council had not investigated the complaint then, so the Ombudsman told Mrs X to make a formal complaint to the Council first.
28. Mrs X wrote to the Council on the 21st November 2018. She complained about the Council’s investigation into the noise and odour from the fish and chip shop. She said despite the improvement works, the nuisance still exists. Mrs X did not feel the sporadic visits undertaken were enough and an officer should visit when the wind is in a South or South Easterly direction.
29. The Council responded on the 23rd November 2018. It said officers undertook three site visits to assess the noise and odour, following the improvement measures taken by the owner of the fish and chip shop to comply with planning conditions. While noise was still audible, officers no longer considered it to be a statutory nuisance. The Council therefore decided the noise abatement work was successful. The Council said an officer detected a slight odour on one of the visits, but not enough to be a statutory nuisance. The Council also confirmed the owner of the fish and chip shop had a noise test carried out by an independent acoustic consultant. This concluded the noise would not have an adverse impact on surrounding residential properties.
30. Mrs X was unhappy with complaint response and wrote back to the Council on the 20th December 2018. She said the complaint should have been investigated by someone outside the department and it wasn’t properly looked into because of the pressures on the department. She said the officer who visited told her he could clearly smell the odour as he got out of his car. She complained the second officer refused to go into the garden and did not open windows.
31. The Council replied on the 21st January 2019. It said on at least one visit the wind was blowing towards Mrs X’s home. The Council accepted some delays in responding to emails due to workload and absence. The Council appreciates there may still be some noise and odour, but officers undertook a thorough investigation and there is no longer considered to be a statutory nuisance. It will therefore take no further action.
32. Mrs X brought her complaint back to the Ombudsman on the 30th July 2019. She said the main issue was the smell from the extractor units installed by the fish and chip shop, which is nauseating. The smell is worst when winds come from the South East. The smell is between the hours of 10.30am and 9.30-10pm, with little break. She also raised an issue of noise from children who gather at the benches the owner had put in front of the shop.

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Analysis

33. Mrs X is unhappy with the noise and smells coming from a local food business. The Ombudsman is not an appeal body and cannot comment on the merits of judgements and decisions made by the Council if there is no fault in the process. Our role is to review the process by which decisions are made.
34. The Council has a duty to look into complaints of potential statutory nuisance. It responded to Mrs X’s complaints in line with its procedures and government guidance. It also asked the business owner to carry out remedial works, which it considered improved the situation to the point where there was no longer a statutory nuisance.
35. Mrs X is unhappy Council officers did not attend at times she wanted, such as when the wind was blowing from the South or South East. She said officers needed to survey over a week to get an accurate picture. The Council agreed to make visits out of hours, when the business in question was running. Officers made three visits after the remedial works and confirmed one of the visits took place when the wind was blowing directly toward Mrs X’s property. I consider the Council’s assessment of the potential nuisance to be reasonable.
36. The decision by the Council that a statutory nuisance no longer existed was the professional judgement of the officers who attended. Mrs X disagrees, but there was no fault in how the decision was reached.
37. The Council accepts some delays in responding to communications from Mrs X, because of being short staffed. There were also occasions where Mrs X and the Council missed one another’s contact. This resulted in delays to the investigation. There was a gap of around five months between the first site visit after the remedial works in July 2017 and the final site visit in December 2017. There are no timescales for assessing nuisance complaints. There were delays in responding, and gaps between assessment visits, but I do not consider this had an impact on the result, nor did it cause Mrs X an injustice.
38. The Council fulfilled its statutory duty by looking into Mrs X’s concerns. It used suitable legislation and guidance to inform its decisions. It considered all the information presented to it. As such, there is no fault in the actions of the Council.
39. I understand Mrs X has not formally complained to the Council about the fish and chip shop owner fixing a bench in front of the shop. Planning permission is needed, and the Council will be able to confirm if the owner has permission. If not, the Council can decide whether it is proportionate to take enforcement action.
40. The Council has confirmed to Mrs X’s MP that it will investigate if the affected party makes a complaint about light nuisance from the fish and chip shop’s security light.

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Final decision

41. Subject to further comments by Mrs X and the Council, I intend to complete my investigation. The Council was not at fault for the way it investigated the potential nuisance.

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Investigator's decision on behalf of the Ombudsman