Summary: Mrs X complained the Council approved plans for an industrial vent to be installed at a restaurant next to her home. She said the vent points directly at her house and causes an odour nuisance. The Ombudsman did not find fault with the Council’s odour nuisance investigation.

The complaint

1. Mrs X complained the Council approved plans for an industrial vent to be installed at a restaurant next to her home. She said the vent points directly at her house and causes an odour nuisance.
2. Mrs X has a young daughter who suffers with asthma, but she cannot open windows because the smell is unbearable.

Back to top

What I have investigated

3. I have investigated how the Council responded to Mrs X’s odour nuisance complaint.

Back to top

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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)

Back to top

How I considered this complaint

7. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• The Council’s response to my enquiries.
• The Environmental Protection Act 1990.
• The Council’s Environmental Health & Licensing Enforcement Policy (January 2020).
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legislation and Guidance

9. Councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance (s.79 of the Environmental Protection Act 1990).
10. 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
11. Generally, a 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.
12. Businesses can offer a defence against an Abatement Notice by showing they operate using the best practicable means to prevent the nuisance.
13. A member of the public may bring a claim of statutory nuisance in the Magistrates’ courts (s. 82 of the Environmental Protection Act 1990).

The Council’s procedure

14. The Council aims to help businesses meet their legal obligations, while taking firm action against businesses who flout the law or act irresponsibly.
15. The Council will focus its enforcement efforts primarily on activities giving rise to the greatest environmental, safety, and public health risks. Any action the Council takes will be proportionate to the risk posed.
16. The Council empowers environmental health officers to exercise professional judgement to differentiate between levels of risk and decide whether a business has fallen short of managing the risk it creates.
17. As part of its enforcement activities, the Council may conduct planned inspections and visits or carry out surveillance. This may include checking compliance with licence conditions and monitoring air quality emissions.

What happened

18. I have summarised below some of the key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
19. Mrs X complained to the Council about cooking smells from the restaurant vents next to her home on 22 June 2020.
20. The Council asked Mrs X to complete diary sheets recording the smell. Mrs X completed and returned these to the Council on 7 July.
21. Between July and August, environmental health officers visited the restaurant eight times to assess the smell.
22. The Council closed its investigation because environmental health officers did not detect a statutory nuisance. It wrote to Mrs X with the outcome on 9 September. It said:
• Statutory nuisance is a criminal offence the Council must prove.
• It carried out site visits at different times but did not find evidence of an unacceptable odour problem.
• There is some odour on occasion, but this is to be expected in this location.
• Its investigations found the ventilation unit is performing as designed and the owner carried out suitable maintenance.
• It liaised with the business to improve its waste management practices. This has improved to an acceptable level.
23. Mrs X complained to the Council on 20 November. She said the Council was negligent allowing the restaurant to store waste outside her bedroom window and fit vents emitting cooking odours directly towards her house. She also said the Council’s investigation into her odour complaint was inadequate.
24. The Council responded to Mrs X’s complaint on 4 December. It said the planning officer who determined the planning application considered the bin location was acceptable. The restaurant gave the Council details of its extraction and filtration equipment as a condition of its planning permission.
25. The Council said it appreciates Mrs X disagrees with the result of its odour nuisance investigation, but that does not mean its decision was wrong. It said it responded to Mrs X’s nuisance complaint promptly and explained the action it took.
26. Mrs X considered the Council’s complaint response was inadequate. She brought her complaint to the Ombudsman on 4 January 2021.

Response to my enquiries

27. The Council told me statutory nuisance depends on wider considerations than the level of impact it observes or the impact a complainant considers they suffer.
28. During site visits, officers stood immediately under the kitchen extractor grill. They did not witness any unacceptable impact. They only observed a noticeable impact on one occasion out of eight visits.
29. The Council said the extractor vent does not directly face Mrs X’s window, so there is opportunity for dispersal before the odour meets her house.
30. A neighbouring house, which is directly opposite the extractor flue, made a complaint in June 2020. However, they did not return diary sheets and have not contacted the Council about the odour again since.
31. The Council told me the officer who investigated the complaint is a trained food and commercial premises inspector. They witnessed the unit running and saw the maintenance regime. They found this was acceptable.
32. The Council considers it undertook a reasonable number of assessments and exceeded the requirements of its enforcement policy. The evidence it gathered did not support statutory nuisance action.

Analysis

33. Councils have a duty to take ‘reasonable steps’ to investigate nuisance complaints.
34. In this case, the Council responded to Mrs X’s complaint by asking her to complete a diary of the odour nuisance. It then liaised with the restaurant owner and undertook site visits to assess the odour at different times of day.
35. On the evidence seen, the Council’s approach was consistent with its policy. It was also consistent with relevant law and guidance. I have not seen evidence of fault.
36. The Council said it was not necessary to assess the smell from Mrs X’s home, as it did so from directly in front of the air vent. It also explained it had to consider the character of the area, which is why it said a level of disturbance was to be expected. It said it cannot protect residents from occasional noticeable odours.
37. To prove there is an odour nuisance, councils must be satisfied the issue unreasonably and substantially interferes with a person’s use or enjoyment of their home, or that it poses a risk to health.
38. After assessing the odour, the Council decided there was not enough evidence it caused a statutory nuisance. That was a professional judgement made by a suitably qualified officer. It is not the role of the Ombudsman to decide whether a statutory nuisance is taking place. Our role is to assess whether the Council followed a proper decision-making process in reaching its decision. I have not seen evidence of fault in the way the Council reached its decision.
39. As the Council pointed out, nuisance is a criminal offence. If the Council is not satisfied it has enough evidence to prove the offence, then it is entitled to find that a statutory nuisance is not taking place.
40. The Council said it considered the waste bin situation to be acceptable. It was also satisfied with the restaurant’s maintenance of its ventilation system. Again, these were professional judgements made by officers.
41. The Council gave reasons for its decisions. It explained the relevant legal position and told Mrs X why it reached its stance.
42. I have not seen evidence the Council failed to take Mrs X’s complaint seriously. It came to a different view about whether there was a statutory nuisance, but that does not mean the Council acted with fault.
43. The Council took relevant matters into account when it reached it decisions and I have not seen evidence it failed to consider relevant information.
44. While I do not dismiss Mrs X’s complaints, I have not seen evidence of fault by the Council.
45. If Mrs X disagrees with the Council, she has the right to take private legal action by bringing a claim in the Magistrates’ court.

Back to top

Final decision

46. I have completed my investigation. The Ombudsman did not find fault with the Council’s odour nuisance investigation.

Back to top

Parts of the complaint that I did not investigate

47. I have not investigated the Council’s decision to approve planning permission. That was in 2018 and is now a late complaint.

Back to top

Investigator's decision on behalf of the Ombudsman