Summary: Ms X complains about the action the Council has taken to prevent odours from a restaurant entering her flat and how the Council handled her complaint about this. Ms X says the odours cause her property to smell. From the evidence seen, the Ombudsman finds fault with the Council and has made recommendations to remedy the injustice caused.

The complaint

1. The complainant, whom I refer to as Ms X, complains about the action the Council has taken to prevent odours from a restaurant entering her flat. She also complains about the way the Council handled her complaint about this.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. As part of this investigation:
• I considered the complaint Ms X raised and the Council’s response.
• I discussed the complaint with Ms X over the telephone.
• I made enquiries to the Council and considered the information it provided in response.
• I sent a draft of this decision to Ms X and the Council and considered the responses received.

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What I found

5. The Environmental Protection Act 1990 (EPA), creates a duty for councils to take reasonable steps to investigate potential statutory nuisances. A statutory nuisance can be caused by noise, fumes, smells, dust, smoke or light among others.
6. Under the EPA a smell which is prejudicial to health or a nuisance can be assessed as a statutory nuisance.
7. Government guidance suggests councils use at least two human ‘sniffers’ to work out the strength of the smell, how often it is detectable, how long it lasts, when it is recognisable, how offensive it is, its character and it’s emission rate. (Nuisance smells: how councils deal with complaints, published April 2015)
8. For a smell to be a statutory nuisance it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises;
• injure health or be likely to injure health.
9. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. 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.
10. A person who receives an abatement notice can appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
11. Councils can decide to take informal action if the issue complained about is causing a nuisance but not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Background

12. Ms X lives in a block of flats which has a restaurant on the ground floor.
13. In April 2018 the Council received a response from its statutory consultee to say the ventilation and filtration systems at the restaurant were adequate. The Council approved planning permission for the restaurant.
14. In May 2018 the restaurant opened. Shortly after opening, Ms X contacted the restaurant to report smells coming into her flat. Mrs X says she contacted the developers of the building who sent an engineer to the restaurant and found the extraction system was faulty.
15. In July 2018 Ms X reported the matter to the Council. The Council visited the site and met with the restaurant owner and manager. It found the ventilation system was not working properly. The Council told the restaurant owner to install new filters into the ventilation system. This did not resolve the issue of the odour coming from the ventilation system.
16. On 3 August 2018 Ms X sent the Council diary sheets detailing when she can smell the odour in her property and the level of the smells. The Council responded to tell Ms X it had met with the owner and developer and agreed works to the ventilation system were needed. The Council told Ms X it would keep her updated about when works will be carried out.
17. As Ms X did not hear anything further she emailed the Council on 10 December 2018. The Council told her it was waiting to hear back from the developers and would keep her updated. On 12 December 2018 the developer contacted the Council saying there was an issue with the owner paying for the works but thinks this will be resolved shortly.
18. Ms X sent a further email to the Council on 19 January 2019. Ms X did not receive a response so sent a further email on 24 February 2019. The Council responded to Ms X in early March 2019 to tell her works on the ventilation system would start soon.
19. Ms X made a formal complaint on 19 March 2019. She complained about the action taken by the Council in resolving the odour issues since she first reported it and the lack of contact from the environmental officer dealing with the matter.
20. As Ms X did not receive a response she contacted the Council on 11 April 2019. The Council told her it would respond to her complaint by 10 May 2019.
21. In May 2019 the Council contacted the restaurant owner to chase up the works to the ventilation system and to tell him it is considering serving an abatement notice. On 22 May 2019 the owner contacted the Council to say he will carry out the works in two weeks.
22. The Council provided its response to Ms X’s complaint on 22 May 2019. The Council said:
• It apologised for the delay in responding to Ms X’s complaint.
• It was regrettable the ventilation system was not installed in line with the specifications, however the owner has agreed the works will start the following week.
• The Council is considering serving an abatement notice on the owner.
• It was sorry for not responding to Mrs X from September 2018 to March 2019. The environmental officer dealing with her complaint had left and the Council provided a new point of contact.
23. Ms X remained dissatisfied following the Council’s response so, on 9 June 2019, she asked the Council to move her complaint to stage two. Ms X said the stage one response did not resolve the issues she raised. She also questioned the advice the previous officer at the Council provided her.
24. On 11 June 2019 the Council visited the restaurant and noted a strong odour. The case notes show it considered this likely a statutory nuisance but needed confirmation by assessing the smell in one of the flats.
25. Additionally, the Council contacted the developer in June 2019 to find out when the works would begin. On 21 June 2019 the owner sent the Council specifications for the new ventilation system and said works should take 4 weeks to complete.
26. On 14 July 2019 the Council visited a flat in Ms X’s block and decided the odour was a statutory nuisance.
27. At the beginning of September 2019, the installation works for the new ventilation system at the restaurant were completed.
28. The Council issued its stage two response to Ms X’s complaint on 17 September 2019. It said the restaurant installed a new ventilation system at the beginning of September 2019 and was waiting for confirmation on whether this system is operational. The Council said it was necessary to wait longer to fund and complete the works as the cost was significant. The Council apologised if the previous environmental heath officer did not properly explain his role as a consultee in the planning process.
29. From the end of September 2019 to mid-October 2019 the Council contacted the developer to chase up whether the ventilation system was operational. On 15 October 2019 the Council attended a site meeting. This revealed the installation works had caused disturbance to the fire separating material, meaning the restaurant could not use the new system until these issues were resolved. The developer agreed to send a fire engineer to inspect the site to find out the extent of the works. The Council updated Ms X with this information.

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Analysis

Complaint about the smells

30. I have found fault with how the council investigated Ms X’s reports about the odour. I recognise when Ms X first reported this the Council visited the site, had a meeting with the owner and established works were needed to the ventilation system. The Council also sent Ms X diary sheets to complete however, it did not follow this up. Ms X sent back her diary sheets and the Council did not update her. No progress was made in carrying out the works to the ventilation system to stop the odours. I can see no evidence the Council followed this up with the developer or gave any deadlines to complete the works before considering further action. This is fault.
31. Ms X chased the Council several times for an update. In March 2019 she found out works to the ventilation system had not started and made a formal complaint. Had the Council kept Ms X updated she may not have raised a formal complaint at this time.
32. The Council contacted the restaurant owner and developer in May 2019 to chase up the works. Again the owner told the Council works would start in two weeks however, this did not happen. The Council visited the site in June 2019 and considered the odour likely to be a statutory nuisance. It could not confirm this until it visited a property in July 2019 where it confirmed the odour was a statutory nuisance by visiting another property. The Council did not serve an abatement notice once it established the existence of a statutory nuisance. This is fault.
33. The Council said it could not gain access to Ms X’s property due to her being abroad so it could not establish a statutory nuisance. It also said the smells reported were outside of office working hours and peak restaurant hours from 7pm onwards. From the evidence available, the Council had the opportunity to investigate and decide whether the odour was a statutory nuisance from July 2018. I can appreciate it can be challenging to investigate reports which occur mainly outside of office hours however, it took a year for the Council to establish whether a statutory nuisance existed.
34. On balance, had the Council properly investigated whether the odour was a statutory nuisance when Ms X first reported it, the Council would have likely found a statutory nuisance existed at a much earlier date. This would have enabled the Council to serve an abatement notice and consider any further action should the owner of the restaurant not comply. I consider three months a reasonable time for the Council to have investigated whether the odour was a statutory nuisance. This is based on it visiting the site, meeting the owner and investigating the reports from the diary sheets Ms X provided.
35. While I recognise the Council tried to negotiate with the owner to carry out the works, there were long periods where no action took place. The Council did not impose any deadlines on the owner to complete works before it considered further action. This caused injustice to Ms X as it resulted in her still having smells enter her property from the restaurant’s ventilation system and not being able to use her balcony.
36. The Council has confirmed the works to the ventilation system are complete but there are issues with fire separating material meaning the new system is not operational until fire safety issues are resolved.

Complaint handling

37. The Council has a two stage complaints procedure. At stage one the Council has 15 working days to provide its response. At stage two the Council has 20 working days to provide its response.
38. At stage one the Council took over 40 working days to provide Ms X with a stage one response. Ms X had to chase this up in April 2019. The Council told her it would provide a response by 10 May 2019 but did not do so until 22 May 2019. This is fault.
39. I have also found fault at stage two of the complaints process. The Council took over 70 working days to respond to Ms X’s complaint. I recognise the Council was in communication with the developer during this time to try to arrange for the owner to complaint the works however, I cannot see evidence Ms X was kept updated.

Agreed action

40. The Council agreed within one month of my final decision to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Ms X for how it responded to her reports of the odour and for the delay in handling her complaint.
• Pay Ms X £900 for loss of amenity for a period of 9 months. I have calculated this on the basis three months would have been enough to investigate and establish the smells were a statutory nuisance but it took a year for the Council to do so. I have also considered the Ombudsman’s guidance on remedies when coming to a payment figure.
• Pay Ms X £150 for time and trouble in bringing her complaint.
• Contact the owner of the restaurant or developer to chase up the resolution of fire safety issues and provide Ms X with regular updates with the progression of the fire safety issues.

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Final decision

41. I have completed my investigation and found fault by the Council which caused Ms X injustice. I have made recommendations to remedy the injustice caused which the Council has agreed to.

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Investigator's decision on behalf of the Ombudsman