Summary: Mrs Y complained the Council failed to investigate her complaint about nuisance caused by smell from business premises. We have not found fault by the Council in its investigation of her complaint.

The complaint

1. The complainant, who I am calling Mrs Y, complains about the Council’s response to her complaint about nuisance caused by smell from business premises. She says the Council:

• failed to investigate her complaint and take any action to establish the extent of the nuisance the smell is causing her: and
• should conduct a proper investigation of the problem.

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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.
3. 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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)

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How I considered this complaint

6. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
7. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Statutory nuisances

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

• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises; and
• smells from industry, trade or business premises.

10. 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.

11. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) 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.
12. Once the evidence-gathering process is complete, the 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.

Private action against an alleged nuisance

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 (section 82 EPA).
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.

The Council’s investigation procedure for nuisance complaints

15. The Council’s Environmental Protection and Nuisance (EP&N) team is responsible for investigating complaints about alleged nuisance from commercial and domestic sources, including fumes emitted from premises which are prejudicial to health or a nuisance.
16. The EP&N team’s investigation procedure sets out general guidelines that should be followed and says alternatives may be considered with a manager. The guidelines include:

• An assessment of whether a case is low, medium or high risk;
• An initial letter to the business complained about inviting their comments;
• Completion of a nuisance assessment checklist documenting the action taken and assessment of whether the complaint meets the nuisance test; and
• If a complaint doesn’t meet the nuisance test, writing to the complainant explaining why.

17. The guidelines for assessing intermittent nuisance, including odour, say;

• During office hours, complainants should be asked to report nuisance when it occurs to the EP&N team and an officer will attend if possible; and
• Where a nuisance is reported to be occurring out of office hours, a visit by a nuisance rota officer may be arranged.

What happened

18. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

19. Mrs Y has lived in her current home, a flat on the upper floor of a residential development, for many years. The development is near a shopping precinct.
20. Mrs Y complained to the Council, from 2017, about smell nuisance from a food business at the precinct. In 2020 she complained the Council had failed to take any action to resolve the nuisance.
21. In its response, the Council explained how its EP&N team had investigated her complaint about the smell. As its officers had not witnessed a nuisance, it was reasonable for the team to decline to take any enforcement action.
22. The food business moved away from the area in March 2022.

November 2022: Mrs Y’s complaint about smell nuisance

23. A new food business opened in the precinct in about April 2022. In November 2022 Mrs Y complained to the EP&N team the smell from the new business was causing a nuisance in her home.
24. The Council sent Mrs Y diary sheets to complete. It also said it had already investigated her complaint about smell, had not found any unpleasant odours in the area which might be causing a nuisance to her in her home and would not be re-opening an investigation into the issue.

March 2023: Mrs Y’s further complaint

25. Mrs Y complained the Council had not investigated her complaint about the smell from the new food business. She reported strong odours in her home in the early hours of the morning and provided completed records of the smell nuisance for February and March 2023.

The Council’s investigation of Mrs Y’s complaint about smell nuisance

26. The Council’s records show in April 2023, one of its EP&N officers:

• considered the information Mrs Y provided about the smell nuisance. They assessed the case as low risk;
• contacted the business premises Mrs Y referred to as the source of the smell, requesting records of its extraction system, odour mitigation, cleaning and servicing regime. The restaurant provided this information together with details of its opening hours, menu and type of cooking;
• visited the precinct and surrounding area during the business’s opening hours. The officer reported being unable to smell any food cooking odours close to Mrs Y’s flat; and
• completed a case review assessing the information obtained from Mrs Y, the business and their visit. They concluded any odour from a nearby food business would have to hang in the air for hours before accumulating in Mrs Y’s flat in the early hours of the morning. Any odour strong enough to do so would have to be extreme. Their visits to the area had not identified any offensive or extreme odours that could cause a statutory nuisance.

27. The Council wrote to Mrs Y’s MP (who had been in touch on her behalf) explaining the outcome of the investigation. It said:

• having considered the information obtained from the business premises and their visits to the area, they had concluded the premises being the source of odour nuisance in Mrs Y’s flat was highly unlikely; and
• their investigations had not identified a statutory nuisance and it was not possible or reasonable to take any enforcement action.

28. Mrs Y was not satisfied with this response. She says the Council has not investigated her complaint properly and has refused to visit her home at times the smell causes a nuisance.

My view – was there fault by the Council causing injustice?

29. My view is the Council has properly investigated Mrs Y’s complaint about smell nuisance occurring after the opening of the new premises.
30. This is because the information seen shows:

• an EP&N officer investigated Mrs Y’s complaint in April 2023 and assessed the evidence obtained;
• the officer then exercised their professional judgement and decided there was no evidence of an offensive or extreme odour which could cause a statutory nuisance in Mrs Y’s home; and
• the Council explained the reasons for its conclusions to Mrs Y’s MP.

31. Mrs Y is unhappy an officer did not visit her home at times the smell caused a nuisance, which she said was mostly in the early hours of the morning. Councils do not have to provide an out of hours service, and it can be difficult for officers to witness a nuisance first hand if it occurs out of normal working hours, or it is hard to predict when it is going to happen.
32. The Council’s investigation procedure allows for out of hours visits to be arranged in some cases. But it is a matter for the EP&N officers’ professional judgement whether an out of hours visit should be arranged in any particular case.
33. The Council did not arrange an out of hours visit here. I do not consider this was fault. The officer exercised their professional judgement and decided they had sufficient evidence from their investigation on which to conclude there was no offensive or extreme odour in the area which could cause a statutory nuisance in Mrs Y’s home.
34. Having considered the action the Council took to investigate Mrs Y’s complaint, and the information it considered when deciding it had sufficient evidence to reach its conclusion, my view is there is no fault in how it made this decision.

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Final decision

35. I have completed my investigation. I have not found fault by the Council in the way it investigated and concluded Mrs Y’s complaint in 2023 about smell nuisance.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman