Summary: Mr X complained the Council failed to take action concerning smoke and odours released from a commercial kitchen near his property. He said this has impacted the health of his family. The Council was not at fault.

The complaint

1. Mr X complained the Council failed to take action concerning smoke and odours released from a commercial kitchen near his property. He said this has impacted the health of his family.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. I read Mr X’s complaint and spoke to him about it on the phone.
5. I considered information provided by Mr X and the Council.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
8. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

9. 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.
   

10. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
11. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
12. 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.
13. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
14. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.
15. The commercial kitchen complained about is in a building owned by the landlord. The building is in a conservation area, and external changes to the building may require planning permission.

What happened

16. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
17. Mr X first complained to the Council about odour from the commercial kitchen near to his property at the end of July 2020. He provided video evidence of the problems he faced.
18. An officer, Officer B, was allocated the case in September 2020 and asked Mr X to keep diary sheets of when the problem occurred. Mr X promptly provided the diary sheets.
19. Officer B visited Mr X in October 2020. He did not witness the problem Mr X complained about. Officer B observed the kitchen cook meat but did not observe the odour complained about.
20. Officer B visited Mr X again in February 2021. He stayed in Mr X’s property for 30 minutes but could not witness the problem. Officer B determined he would need to witness the odour to take further formal action.
21. Officer B visited the site again in April 2021. He did not witness any odour.
22. Officer B visited the site again in June 2021. He did not witness the issues complained about.
23. In August 2021, the Council determined it could not proceed on a formal basis to issue an enforcement notice because the issues had not been independently witnessed. The Council confirmed to Mr X, it would attempt to proceed in an informal manner to support the kitchen improve its ventilation.
24. Officer B continued to liaise with the kitchen owner and the landlord of the building to support them to resolve the issue. He continued this work until April 2022. Officer B arranged for engineers to visit the kitchen to recommend upgrades to the extraction equipment. Officer B advised the owner and engineer the building was in a conservation area, so any external adjustments would likely need planning permission.
25. Mr X complained to the Council in May 2022. He said it was two years since he raised the issue of odour from the kitchen, and it was not resolved.
26. The Council responded to Mr X’s complaint in August 2022. It explained what action the Council had taken. The response advised Mr X the Council had completed a reasonable investigation and it would normally close a case where there was not statutory nuisance. It did take Mr X’s video evidence into account and was working to support the kitchen owner, and the landlord of the building to make changes. It advised Mr X working with businesses took a long time but it was working to help the kitchen improve.
27. Mr X requested the Council escalate his complaint to stage two in November 2022. He said the Council had avoided its responsibility.
28. The Council provided its stage two complaint response in December 2022. It confirmed it did not have the evidence of a statutory nuisance to proceed with formal action. The Council said it was taking informal advice. It confirmed Mr X could take action in a Magistrate’s Court if he wished. The Council advised it was conducting an internal review into officer B’s actions, but informal action had not been successful.
29. The Council completed the internal review in January 2023. The review concluded the Council did not have sufficient evidence to proceed in a formal manner.
30. Officer B visited the kitchen in February 2023. He reported he did not observe the odour Mr X complained about.
31. Officer B visited Mr X in March 2023. He visited late in the evening and placed an order with the kitchen. Officer B opened the windows in Mr X’s home and could not smell the odour he complained about. Officer B determined there was no statutory nuisance detected. The Council closed the case.
32. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to force the kitchen to install a ventilation system or close the kitchen.
33. In response to my enquiries the Council stated it did not witness a statutory nuisance. The Council advised it tried to take informal action but this did not get the result Mr X wanted. It explained some delays because they were dealing with a private business and a landlord of the building. The Council confirmed it visited six times, on different days and different times and did not witness a statutory nuisance.

My findings

34. The key issue in this case is whether the Council properly investigated if there was a statutory nuisance. Mr X approached the Council in July 2020. He provided video evidence of the issue he reported, and the diary sheets the Council requested.
35. Officer B visited the site four times over the following six months and did not witness the issues Mr X reported. The Council could not determine the issue was a statutory nuisance.
36. The Council did accept Mr X’s videos evidenced a different side to this case. It decided to proceed with informal action.
37. The Council liaised with the owner of the business and the landlord of the building extensively. The Council also provided engineers to advise the kitchen of options to improve the issues reported. The kitchen determined the option was too expensive and did not proceed with the recommendations.
38. The Council conducted an internal review of the case. The review concluded the Council did not have the evidence of a statutory nuisance to proceed with formal action.
39. The Council visited a further two times and did not witness a statutory nuisance.
40. 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, at different times of the day and evening, 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.

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Final decision

41. I have completed my investigation. I have not found fault by the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman