Torbay Council (21 000 539)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 13 Oct 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to take action to control odours released from a commercial kitchen near to his property. He said the odours affect his quality of life and also his own business use of his property. There was no fault by the Council.

The complaint

  1. I call the complainant Mr X. He complained the Council failed to take action to control odours released from a commercial kitchen near to his property. He said the odours affect his quality of life and also his own business use of his property.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the complaint and documents provided by Mr X and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr X and the Council and considered their comments.

Back to top

What I found

Summary of the relevant law, guidance and good practice

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Smells from trade or business premises can be a statutory nuisance.
  2. 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 premises; and/or
    • injure health or be likely to injure health.
  3. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
  4. Once the evidence-gathering process is complete, the officer will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.
  5. 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.

What happened

Summary of the key events

  1. Mr X first complained to the Council about odour from the business premises near to his property in March 2019. An officer, Officer B, visited and asked Mr X to keep diary sheets of when the problem occurred. Mr X completed some diary sheets and tried to contact the officer on the phone but could not reach him. He said he couldn’t follow this up as it was the busy time of year for his business.
  2. The next year, in June, the Council received a complaint from another neighbour and from Mr X about continuing problems now the premises had opened for the summer season. Officer B visited Mr X and the other complainant. A month later Mr X wrote again saying the situation was worse. Officer B wrote to the owners of the premises and then visited. He updated Mr X and asked when would be a good time to visit for him to witness the odour.
  3. The next significant action was at the end of August when the neighbour and Mr X again contacted the Council. Over the beginning of September a different officer was involved. They gave their mobile number to Mr X and the neighbour so they could visit when there was a problem. They visited three times over September and then Officer B visited at the end of that month. They record that they did not witness any odour from the premises that amounted to a nuisance.
  4. At the end of October the Council decided to close the investigation as they had not seen any evidence of a statutory nuisance. That decision was delayed because of contact from a local councillor.
  5. Mr X made a formal complaint in December. This covered not only the odour issues but also concerns he had raised about planning irregularities at the site. The Council responded in March. Mr X remained dissatisfied so complained to us.

Analysis

  1. The key issue here was whether the Council properly investigated whether there was a statutory nuisance. Mr X first approached the Council in 2019. He explained to me there had not been a particular change in the situation but he was fed up with what he considered to be an ongoing unsatisfactory situation. An officer visited him but there was no further action. Mr X says he tried to contact the officer leaving 5-6 messages for him but did not receive a response. The Council’s records do show some calls from Mr X but no detail is recorded but this does point to a likely failure by the Council to return his calls in 2019. But this is not a significant point as the information the Council needed was the diary sheets and there is no evidence to show that they were returned to the Council.
  2. In 2020 an officer visited both Mr X, the other complainant and the alleged perpetrator. Over the later part of the summer a different officer visited the site and provided their mobile number so they could be contacted when there was a particular problem to witness. The officers who visited the site say they did not witnesse odour from the premises that would amount to a statutory nuisance.
  3. Mr X considers the odour is clearly coming from the nearby property and it is nonsensical for officers to say that is not the case. Officers have commented there are many other nearby food premises, many of which do not have adequate modern extraction systems. It is not for me to substitute my judgement for that of the Council officers on whether there is, or is not, a statutory nuisance. I considered whether they carried out an adequate investigation and I am satisfied they did. They visited the site a number of times and spoke to all the parties. As there is no fault in how they carried out the investigation there is no basis to question the conclusions they reached.

Back to top

Final decision

  1. There was no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings