Summary: We will not investigate Ms X’s complaint about the Council's handling of her complaint about smoke and odour nuisance. Any complaint about the planning approval process is late and there is insufficient evidence of fault in the Council’s more recent investigation into her concerns of smoke and odour nuisance to warrant further investigation.

The complaint

1. Ms X complains the Council failed to consider the impact on her business before approving a planning application for an extractor fan to be installed at a nearby property. She also says the Council has failed to appropriately investigate her complaints of odour nuisance or act to reduce the smoke and odour. She wants the Council to act to reduce smoke and odour nuisance, either by requiring the owners to re-site the fan away from her business premises or ensuring it is appropriately maintained.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council granted planning permission for the extractor fan in 2022. If Ms X had concerns about whether the Council had considered the potential impact on her business during the planning process, she could have complained about it at the time. Any complaint about the planning process is late and there is no good reason to investigate this now.
8. In its complaint response to Ms X, the Council sets out how it has responded to her recent reports of smoke and odour nuisance. It said since she complained in February 2023, officers had visited her premises to assess the odour 10 times. On none of these visits did officers conclude the smoke and odour amounted to a statutory nuisance.
9. The Council said it had also checked with the fan owners and was satisfied the extractor fan was fitted with the correct filters. It told her that as it has not found evidence of a statutory nuisance, it could not require the fan owners to take further action.
10. We will not investigate this complaint as there is insufficient evidence of fault. The Council has responded appropriately to Ms X’s concerns by visiting to assess the smoke and odour on multiple occasions. It concluded any smoke or odour did not amount to a statutory nuisance. Although I accept Ms X disagrees with this decision, this is a decision the Council is entitled to make. It is not our role to question whether a decision is correct, if it has been taken without fault.

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Final decision

11. We will not investigate Ms X’s complaint because a complaint about the planning decision is late and there is insufficient evidence of fault in the Council’s handling of her complaint about smoke and odour nuisance.

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Investigator's decision on behalf of the Ombudsman