Summary: We found fault by the Council on Mr J’s complaint about it failing to act against a nearby restaurant after making reports of odour and noise nuisance over many years. There were periods of delay and poor communication with Mr J during the Council’s investigation. The agreed action remedies the injustice caused.

The complaint

1. Mr J complains about the Council failing to act against a nearby restaurant after reports he made for several years of daily nuisance from odours and noise: as a result, his amenities are affected as he cannot open his windows for fresh air, particularly over summer, and he is concerned about the smell of partially burnt fuel from a barbeque stove used at its rear.

Back to top

What I have investigated

2. I have not investigated all of Mr J’s complaint about the Council’s actions over the last three years but only those from January 2021. The paragraph at the end of this statement explains why.

Back to top

The Ombudsman’s role and powers

3. If we are satisfied with an organisation’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)
4. 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)
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)

Back to top

Environmental Protection Act 1990

6. Section 79 (1) of this Act states what amounts to a statutory nuisance. This includes smoke, smells, and noise emitted from premises so as to be prejudicial to health or a nuisance. It shall be the duty of every local authority to inspect its area from time to time to detect any statutory nuisances. Where a complaint of a statutory nuisance is made by a person living in its area, it is to take such steps as are reasonably practicable to investigate the complaint.
7. Under section 80 of this Act, where a local authority is satisfied a statutory nuisance exists, or is likely to occur or recur, within its area, it shall serve an abatement notice. This will require the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence. It can also require taking such works, or other steps, as may be necessary to achieve this.

Back to top

How I considered this complaint

8. I considered all the information Mr J sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr J and the Council. I considered their responses.

Back to top

What I found

9. Mr J has complained about a local restaurant for almost three years. The restaurant backs on to a road near where he lives. His flat is about 50 metres away, and he is unhappy because of noise, smoke, and odours from it, including partially burnt fuel. The nuisance prevents him from opening his window for ventilation, especially in hot weather. He is in shared accommodation so can only sit in his room. A large part of the problem is the restaurant using the rear yard to do barbeque type food with no proper ventilation.
10. Mr J believes the Council could, and should, have done more to stop the owners of the restaurant from causing him and other residents a nuisance.
11. The following are key events:

2021:

• February: The Council served an abatement notice (the notice) on the owners for statutory nuisance. This followed receiving 17 reports about smoke and odour.
• March: After officers visited and witnessed smoke and odours from the yard following further reports from Mr J, the Council wrote to the owners warning this potentially breached the notice. Officers would monitor the area. The owners told the Council about actions they would take to deal with the problem. The Council never received any further update from them about their final plans.

The Council sent Mr J a response under its first stage of its complaints procedure. This looked back at its actions over the previous year and apologised for delays including the delay serving the abatement notice following a visit to the site the previous December. It also sent him an email explaining officers visited, saw smoke, and had spoken to the owner.

• April: Mr J made a further report of problems with smoke and odour. The Council had no officers available to visit.
• May: Following further reports from Mr J, the Council sent the owners a warning letter about breaching the notice.
• June: Officers visited after more reports but did not witness a statutory nuisance.
• July: The Council sent Mr J an apology for not contacting him sooner. Officers visited but found no evidence of a nuisance. The Council warned the owner that action he had taken was not suitable.

2022

• March: Mr J made a further report.
• April: Mr J made a further report.
• May: After further reports from Mr J, officers visited but saw no nuisance. Officers emailed Mr J saying they were now looking to seize equipment from the site but had trouble finding a vehicle to allow this to happen. The Council also emailed the owner about breaching the notice and warned about seizure of equipment. After another visit, the Council told the owners it would proceed with enforcing the notice. The Council emailed Mr J saying it would send another warning to the owners as there was a breach of the notice
• June: The Council gave the new owners an update and inspected the site. Further warnings were issued.
• July: Officers were satisfied the barbeque area was back in use following reports from Mr J. It confirmed a breach of the notice and its intention to prosecute the owners.

My findings

12. The Council accepted it could have issued the notice sooner than it did. The evidence shows the Council issued the notice more than eleven weeks after visiting the site and witnessing a statutory nuisance. As I only looked at events from January 2021, this means the total delay I considered was eight weeks. I consider this amounts to fault.
13. It took the Council about four more weeks to tell Mr J what it had done, by which time he had made a formal complaint. I consider the Council delayed keeping Mr J informed about progress on the investigation during this period. This is fault.
14. From issuing the notice until July 2021, the Council acted in response to Mr J’s reports by giving the owner warnings and visiting when officers were available.
15. There is no evidence explaining what the Council did in response to Mr J’s reports in March and April 2022. The lack of response is fault.
16. In May, following another report from Mr J, the Council gave a verbal warning to the owner. Officers visited the site and sent a written warning about how the Council would seize equipment. An email to Mr J informed him of this and explained the problem was finding a vehicle to allow the seizure to take place. There is no evidence of officers going on to later explain to him whether they still intended to seize the equipment. This failure amount to fault.
17. I am satisfied the identified fault caused Mr J injustice. This is because they caused him distress. He has the uncertainty of not knowing whether matters might have progressed faster but for the delays, for example. He was also caused some stress and frustration by not receiving updates.

Back to top

Agreed action

18. I considered our guidance on remedies.
19. The Council agreed to carry out the following actions within four weeks of the final decision on this complaint:
1. Send Mr J a written apology for failing to: progress the investigation without delays; communicate and update him regularly.
2. Pay Mr J £100 for the injustice the fault caused.
3. Identify why there were delays, and a failure to provide regular updates, and act to ensure these are not repeated on future cases.

Back to top

Final decision

20. I found fault on Mr J’s complaint against the Council. The agreed action remedies the injustice caused.

Back to top

Parts of the complaint that I did not investigate

21. I have not investigated any complaint about the Council’s actions taking place before January 2021. This is because Mr J complained to us in June 2022. Normally, we would investigate only from June 2021. This is because 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.
22. I exercised discretion to investigate from January 2021 because Mr J received his final response to his complaint under its complaints procedure in March 2021. In addition, he was also told the Council had served the owner with an abatement notice the month before. I consider it reasonable for him to assume he needed to give the Council additional time after this to investigate whether problems continued before complaining to us.

Back to top

Investigator's decision on behalf of the Ombudsman