Summary: Mrs D says the Council delayed investigating and failed to take enforcement action relating odour nuisance from a food outlet. The Ombudsman has found evidence of delay but no significant injustice. He has upheld the complaint and completed the investigation.

The complaint

1. The complainant (whom I refer to as Mrs D) says the Council delayed investigating and failed to take enforcement action for an odour nuisance caused by a nearby food outlet. She states there was a breach of planning control and rodent activity which should have been resolved by the Council.

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What I have investigated

2. I am looking at events from September 2018 onwards. Mrs D complains about matters predating this period and I explain below why I cannot consider them.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have carefully considered the information provided by Mrs D. I asked the Council questions and examined its response.
6. I shared my draft decision with both parties.

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What I found

What happened

Background

7. Mrs D lives near a food outlet. In 2013 she complained about a flue extraction pipe to the Council. It investigated and found the pipe had been correctly installed. In 2017 Mrs D told the Council about odour issues at the food outlet. The Council found the flue pipe had been removed. Planning Enforcement said this was technically a breach of planning control. It also took over the handling of the case (including odour nuisance) from Environmental Health because the reinstatement of the flue would likely resolve any alleged odour nuisance. In 2018 the Council continued to discuss the positioning of the flue with the owner and advised a new planning application was needed to vary the original planning conditions regarding the flue location.

Events I am investigating

8. In September 2018 the owner submitted a planning application to the Council to relocate the extraction flue. The application was considered by Environmental Health. It found there was insufficient information and asked the Planning Team to obtain more details from the owner. In January 2019 the Council received the outstanding information it needed from the owner for the application.
9. On 21 June the Planning Team asked Environmental Health for its views on the planning application. It responded on 28 June that it had no objection in principle but there was “potential to cause odour nuisance” and advised on the height of the flue pipe for better dispersion of smells.
10. On 10 July Mrs D complained to Environmental Health about odours from the outlet. The Planning Officer updated Mrs D the same day. The Council would likely allow three months for the works to be completed. Mrs D said it should be one month. Later that the Planning Officer told Mrs D the works would have to be completed within two months and explained why this was necessary. On 15 July Mrs D said grease on the wall by the extraction point might attract vermin. Environmental Health agreed to inspect it and visited the site three days later. The Officer noted grease on the wall under the fan cover but no evidence of rodent activity. They called the owner the same day and said the owner must clear the grease. The Officer revisited on 29 July and the grease had been cleared. In July the Council granted planning permission for the flue with the requirement that work be completed by 23 September.
11. On 19 September Mrs D called the Planning Officer asking when works would be carried out. On 20 September Mrs D contacted Environmental Health because no work had been done to fit a new flue. On 25 September Mrs D complained about the Council failing to have the flue installed. At the start of October the Council contacted the owner who advised work would not happen until November. The Planning Officer told the owner the Council would have to consider whether it was now expedient to take enforcement action unless an installation date was confirmed. On 3 October the Council updated Mrs D. The Planning Officer continued to chase the owner for an installation date. On 17 October Mrs D complained to the Council about the delays. On 25 October the owner gave the Council an installation date in November. On 19 November the Council wrote to the owner advising works had not been done and asked for an explanation. The same day it was confirmed there had been a delay by the installers and work would take place on 25 November. The flue works were completed on 25 November.
12. Mrs D continued to contact the Council about her dissatisfaction with its handling of the case. On 21 October 2020 the Council held an appeals panel hearing. It sent Mrs D its decision letter a week later. It said it did not uphold her complaint. There had not been delay by the Council. The applicant had failed to include information in the planning application and the Council could not progress the application until that was received. Environmental Health had carried out a site visit and found no evidence of a statutory nuisance. It had also not found rodent activity. The Council explained there was no basis to take enforcement action given there was no statutory nuisance. As for Planning it had to allow the owner the opportunity to rectify the planning breach by submitting a new planning application. The first course of action could not be the courts in a case like this.

What should have happened

13. When the Council receives a report about an alleged statutory odour nuisance its Environmental Health Team will investigate. An Officer will attend the site and determine if there is a statutory odour nuisance. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence and use their judgement. If there is no evidence of a statutory nuisance the Council cannot start enforcement action.
14. An Environmental Health Officer may also visit a site if there are reports of a nuisance causing rodent infestation. Again, if there is no evidence of rodents the Council will not take further action.
15. The Council can take enforcement action if they find planning rules have been breached. However, it should not take enforcement action just because there has been a breach of planning control. 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 July 2018, paragraph 58)
16. When the Council receives a report of a planning breach its Planning Team will investigate. If there are other environmental issues it may liaise with colleagues in Environmental Health and decide which team should take the lead. If the Council finds a planning breach it will usually allow the owner an opportunity to rectify the breach by submitting a new planning application. There is no set timeframe for deciding a planning application although the Council should aim to progress matters once it has all the necessary information.

Was there fault by the Council

17. I have found one instance of fault by the Council. I have no records to show what actions took place between the end of January 2019 up to June to progress the planning application. The Council tells me it had ongoing discussions between Planning and Environmental Health. However, the first record I have is Planning contacting Environmental Health on 21 June for its formal views on the application. Given the outstanding information was supplied by the owner at the end of January I must conclude there was delay to reasonably progress matters, by obtaining the view from Environmental Health, of five months.
18. I have not found any further fault.
19. Mrs D wanted the Council to take enforcement action against the owner. The Council has already, correctly, explained why this was not an option. In respect of an alleged odour nuisance the Council visited the site and did not witness a statutory nuisance. As such it had no basis to take formal action against the owner in respect of odour nuisance. Turning to the planning breach, the Council will not seek to immediately start formal enforcement action leading to a possible court case in a situation like this one. In line with government guidance the Council sought to resolve the breach via a new planning application. There was delay once the permission was granted but that was by the owner not the Council. The records show me the Planning Officer was in regular contact with the owner chasing up when the works would be carried out and correctly advised the Council would consider enforcement action if the breach were not resolved. Finally, regarding Mrs D’s complaint about rodents, there is no fault by the Council. It attended the site and found no evidence of rodent activity. Furthermore, the Officer revisited the site to check it had been cleaned. Aside from the fault above I am satisfied the Council acted in line with its policies and procedures.
20. I appreciate Mrs D disagrees with the decisions taken by the Council, but they were decisions it had a right to take. In the absence of fault in that process the Ombudsman cannot question the merits of the decisions taken.

Did the fault cause an injustice

21. There was a delay of five months reaching a decision on the planning application. This undoubtably caused frustration for Mrs D. However, I cannot say she was subject to a statutory odour nuisance or rodent activity as a result. That is because the Council has not witnessed a statutory nuisance or rodents. In view of this I do not see the fault resulted in a significant injustice that warrants redress.

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Final decision

22. I have upheld the complaint and completed the investigation.

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Parts of the complaint that I did not investigate

23. I am not looking at events prior to September 2018. That is because the Ombudsman expects a complaint to be made within 12 moths of the problems arising.

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Investigator's decision on behalf of the Ombudsman