Summary: The Ombudsman found fault on Mr Y’s complaint about how the Council dealt with reports about a neighbouring takeaway’s flue which had no planning consent and caused a nuisance. The Council could have considered serving an enforcement notice earlier but this caused no significant injustice. There was a failure of the environmental health team to communicate and co-ordinate with the planning enforcement team on some of its decisions. The agreed action remedies any injustice caused.

The complaint

1. Mr Y complains the Council failed to take effective action against a neighbouring takeaway:
1. to prevent noise and odour nuisance from its extractor; and
2. which had no planning consent for the extractor.

In addition, he also complains the Council failed to deal with his formal complaint properly.

2. As a result, he and his family are disturbed daily by noise which is depriving them of sleep and causing them great stress.

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What I have investigated

3. I only investigated the Council’s actions since January 2018 for the reasons set out towards the end of this decision. Information in this decision predating this is given only to help put the scale and nature of the problems into context.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)

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Council: Environmental health enforcement policy

7. Where informal advice and guidance has failed, or where the breach of regulatory compliance is so serious as to cause harm to its communities, it will take formal enforcement action against businesses and/or members of the public.
8. Enforcement decisions shall be proportionate, consistent, balanced, fair, and transparent. When deciding on the method of enforcement it takes account of:

• The seriousness of the risk or harm likely to occur;
• The history of compliance;
• The existence of an adequate system for managing risks;
• The business size and capacity;
• Legal, official, or professional guidance; and
• The likely effectiveness of the various options. (paragraph 7.1)

9. Prosecution will only proceed to court if the criteria set out in the Code for Crown Prosecutors, the public interest and the evidential tests, are met. The legal team will be consulted. (paragraph 7.2)
10. A decision as to who takes the lead will be decided on in the circumstances where there is shared enforcement responsibility with another agency. (paragraph 7.5)
11. There is a range of action officers can take which includes: no action; informal action and advice; verbal or written warnings; inspection reports; visits; statutory notices; carrying out works in default; and prosecution. (paragraph 8.2)
12. Taking informal action may include giving the business the chance to respond to a complaint where: there were no serious acts or omissions; the history of the business shows a reasonable expectation it will achieve compliance; the risk of non-compliance not posing a significant risk to public health, safety, wellbeing, and/or the environment. (paragraph 10.3)
13. Formal statutory notices are issued when: there is a significant contravention of legislation; there is a lack of confidence in the person responsible to respond to an informal approach; there is a history of non-compliance with informal action; there are potentially serious consequences of non-compliance to public health/safety/wellbeing; actions need taking quickly to remedy conditions that are serious or deteriorating. (paragraph 13.1)
14. In some circumstances, it may be necessary for officers to carry out works in default to remedy a situation where the person legally responsible fails to do so. (paragraph 15.1)

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How I considered this complaint

15. I considered all the information received from Mr Y, the notes I made of our telephone conversations, and the Council’s response to my enquiries. I have not sent him a copy of the response as there is third party information contained throughout the many copy documents provided. Instead, I asked the Council to provide Mr Y with a redacted copy of its response. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

16. Mr Y, his wife, and young child have lived in their rented accommodation for about 6 years. They live above some shops. Towards the opposite end of the block is a takeaway. Problems with this business started when a new owner took over. Mr Y claimed his family’s quality of life was affected because of noise, odours, and vibrations from the flue.
17. I now examine each of his complaints:

Enforcement: nuisance and planning

18. Mr Y complains the Council’s Environmental Protection Team (EP) failed to take effective action against the owners for disturbance from the takeaway which included noise, vibrations, and odours. The role of EP was to investigate whether there was evidence of a statutory nuisance from the flue and box fan later fitted. If a nuisance is found, EP would decide how to resolve the problem through informal or formal action. It also had to provide feedback on the planning applications in terms of potential statutory nuisance and mitigation measures needed.
19. He also complains its Planning Enforcement Team (PE) failed to take effective action against the owners for breaches of planning consent. This was because the owners had no consent for the flue, or the later box fan installed. The role of PE was to investigate reports of breaches of planning consent and decide how to resolve the situation through informal, or formal, action.
20. The following are key events for this site:

2016

21. The Council received planning application 1 in May which sought consent for other development and a flue the business owner installed without consent. The business owner had removed 2 flues and replaced them with one. EP had no objection to it. The Council refused it in September on the ground of the harm to the visual amenity of the area. The applicant failed to proceed properly with the appeal against this decision and, in March the following year, the planning inspectorate confirmed it would not consider it.

2017

22. The Council received planning application 2 in May which sought consent for other development as well as replacing the flue. The Council said it was a resubmission of application 1. Mr Y complained to the Council about noise.
23. Following a further report from Mr Y, the night-time noise team visited, and EP decided noise was likely to be travelling through the structure of the building.
24. In August, EP sent a letter to the owner saying the noise team found levels of noise unacceptably loud which caused disturbance to residents. EP asked what steps he would take to keep noise at an acceptable level. The letter asked the owner to confirm when an engineer installed rubber mountings which EP thought would resolve the noise issue.
25. The Council gave the owner a deadline in September to send amended plans for application 2, as it was not acceptable as submitted, or it would refuse it. The owner of the business agreed to fit anti-vibration mounts to the rear brackets holding the flue and carry out other works to reduce vibration.
26. In October, EP recommended refusal of application 2 because no noise, vibration, or odour reports were received with it. After a further visit by EP, officers concluded there was no noise nuisance.
27. The Council refused application 2 because of its visual impact and lack of information about noise, vibration, and odour mitigation measures.
28. In November, EP wrote to the owner asking what he intended to do as the Council refused consent for application 2 and, ‘the system is still audible to nearby residents’. The letter warned not to change the system without getting planning consent. EP also wrote to the agent suggesting a meeting on site. The same month PE intended to seek authority to issue an enforcement notice for the removal of the flue. When EP later analysed the noise monitoring recordings, it decided they did not cause a nuisance. EP closed its case.
29. PE served a Planning Contravention Notice (PCN) on both owners. A PCN is usually served at the first stage of enforcement proceedings where it is believed planning control may have been breached. It requires answers to specific questions within a set time period. The Council can take court action if it does not receive a proper reply.

2018

30. In January, PE served an enforcement notice on the owner. This required the removal of the flue by April. An enforcement notice aims to remedy a breach of planning consent and carries a right of appeal. Failure to comply can lead to prosecution through the courts.
31. The following month, the Council received application 3. This was for the removal and relocation of the flue.
32. PE noted the failure to respond to the PCNs and saw little difference between this and previous applications. EP told the planning team noise and vibration was likely from the proposal. The owner needed to send an acoustic report which included the sources of noise it is likely to produce and details of mitigation measures, for example.
33. In April, EP recommended the need to reduce noise at the outlet of the flue. The Council went on to refuse application 3 on the same grounds as application 2. An officer from PE visited the following month having been told contractors would remove the flue. This had not happened. In response to my draft decision, the Council sent me a copy of its delegation report and decision dated 1 May. This sought and gave authority to prosecute the owner of the business for failure to comply with the enforcement notice.
34. In June, it was removed and a box fan extractor attached to the wall. This had no planning consent. The owner’s agent told PE he would prioritise a new planning application. The following month PE decided to issue PCNs on all parties before moving on to enforcement.
35. In July, EP received reports from Mr Y about noise and odours from the extractor system. This included 8 reports of fan noise, 41 of odour, and 6 about roller shutter doors. The Council also received a report of noise and odour from 2 other residents. EP wrote to the business owner warning it was now investigating.
36. The Council received application 4 in July. It sought consent for the box fan extractor now attached to the side wall of the premises. There were problems with the application’s validity. PE decided the Council should pursue the PCN. PE’s records show there was concern this was becoming a ‘game’ and the Council needed to consider getting an injunction. EP recommended refusal of the application. This was because the applicant failed to provide information about addressing noise, vibration, and odour.
37. In August, the application was finally validated. EP’s night-time noise team visited. They found the fan barely audible with the windows closed and witnessed a moderate level of smell of oil/fat when entering and leaving. EP considered it to be more an issue with vibration.
38. EP met with PE and a planning officer to discuss the nuisance and planning enforcement action. EP would recommend refusal of the application because of noise and odour.
39. The Council refused the application in September. Its appearance was no longer a factor. The decision notice did not set out a reason for the decision, but this was set out in a letter to the agent. The same month EP sent a warning letter to the owner about how officers found the level of noise and odour unacceptably loud and odorous during a visit. EP needed them to act to stop this nuisance. A man claiming to be the new business owner told EP he was not going to act but would speak to the agent.
40. In its response to my draft decision, the Council disputed this was said. I checked the note of the telephone call again which actually said, ‘gent said that he was not going to do anything as the neighbours, the man over the road and [Mr Y] are uploading videos of his business and saying bad things about him.’ The note ends with the owner saying he wanted to speak to the agent.
41. In October, the owner appealed the refusal decision on application 3. The Council’s legal department decided PE should take the lead on this case. The agent agreed to meet EP officers on site the next month. EP updated Mr Y.
42. PE began to prepare an enforcement report. PE asked the agent to remove the box fan and warned about issuing an enforcement notice. PE reasoned having an enforcement notice about the box fan provided the Council with some insurance if the owner succeeded with the appeal but delayed installing the flue.
43. In November, EP met the agent and tenants on site. The owner was asked to look at the fan casing/mounting to reduce vibration of the noise through the building. EP gave 14 days to try and improve the box fan as a temporary improvement measure. EP would consider serving an abatement notice after that time. The officer asked for noise, odour, and vibration information. This was sent but was the same as that sent for application 2. The report said additional noise reduction measures were needed for the flue.
44. A further site visit revealed the box fan still in place. The officer told the agent the Council could not support the plan to reinstate the earlier system as it was unsatisfactory in terms of noise.
45. While the appeal on application 3 was yet to be determined, PE noted the fan had no consent and the owner had not appealed the decision on application 4. PE suggested the best way forward was perhaps an abatement notice from EP which it served towards the end of the month. This required the abatement of noise, vibration, and odour nuisance by installing a suitable extraction system and flue by February 2019. An abatement notice is served where a statutory nuisance is found.
46. The same month, EP emailed Mrs Y giving information about noise and vibration improvement from the box fan in place as an interim measure until a flue was erected. Mrs Y was confused and unhappy with this approach as PE were trying to get it removed. PE were concerned any temporary improvement might be used to delay action by the owners or re-apply for consent for the fan.
47. PE told EP the owner needed to present a substantially smaller flue to limit the visual impact. PE served another enforcement notice. This was about the removal of the box fan because of noise, vibration, and odour impact.

2019

48. In January, on the appeal for application 3, EP wrote to the planning team and set out what the owner needed to do to satisfy the Council about noise, vibration, and odours. EP wrote to the agent asking if he had sent a new planning application as claimed by Mr Y.
49. In February, PE noted it now had authority to prosecute for the failure to comply with the enforcement notice for the fan. The planning inspector dismissed the appeal against the decision to refuse application 3.
50. EP visited the premises and found the abatement notice not complied with so arranged for further monitoring. EP told the business owner further nuisance reports were received and further independent investigation would start to see if there was a breach of the abatement notice. Noise monitoring equipment was installed.
51. In March, the monitoring equipment found low frequency fan noise which increased background by up to 8 dB. Monitoring during an officer visit found no problem with odour but it was a windy day. The officer received some noise and vibration information from the owner in support of a new planning application but needed odour information. Due to the pending planning application, EP decided to delay enforcement action. The legal team advised if the owners were not putting measures in place to resolve issues, it had no option but to prosecute.
52. The Council received application 5 for the installation of a flue in March but rejected this as invalid. It became valid in April.
53. EP decided it did not need to pursue the non-compliance of the abatement notice because of the receipt of application 5. As PE noted, this was premature as the application was invalid as it contained the wrong address and did not have the information EP needed about odour suppression. Even if valid and given consent, there was no guarantee the owner would carry out the consent anyway.
54. EP wrote to the owner saying it needed information about preventing odours causing a nuisance within a week. The agent sent details about odours and the new system. This appeared to resolve the issue of odours.

Analysis

Planning Enforcement:

55. I note the following on this complaint:
1. In 2017, 8 months after the refusal of application 1, the owners submitted application 2, basically the resubmission of application 1. Another 5 months was taken up by the Council dealing with this application until it refused it. A council can refuse to register an application on the ground it was similar to the previous one. It can exercise discretion to do this when satisfied the intention is to wear down opposition by repeating the proposal. If genuinely revised, a council should consider it. The owner must have revised application 1 because the Council gave consent for part of application 2 for other development.
2. The Council warned the owner application 2 needed amended plans otherwise it would refuse it and gave him an opportunity to do so.
3. Shortly after doing so, it issued the PCN but got no response. Early in the new year, it issued an enforcement notice.
4. The enforcement notice required the owner to remove the flue by April 2018. The owner failed to do so. An officer visited and found despite what the owner said would happen, the flue remained. The same month, the Council refused application 3. In response to my draft decision, the Council provided a copy of the delegated decision (with report) issued in May giving authority to start prosecution proceedings for non-compliance with the enforcement notice.
5. In June, the owner removed the flue. While this was the action the enforcement notice wanted, it was 2 months late. In response to my draft decision, the Council noted that while the 2-month period was technically correct, it was unable to prosecute sooner because the owner had 2 months to comply. I note the enforcement notice was issued in January 2018 but did not become effective until February. This means the time for compliance ended in April. The Council issued warning letters to the owners the following month. A few weeks later, the owner removed the flue. It was not fault for the Council to send a letter after the expiration of the time for compliance warning about its intention to prosecute.
6. In July, the owner sent application 4, a retrospective application for the box fan but the Council could not validate it until the following month. When the Council refused this two months later, the owners appealed application 3. PE became concerned this was becoming a game with the owner.
7. In October, PE decided EP should consider serving an abatement notice and began to prepare its own enforcement notice report.
8. In November, PE issued an enforcement notice for the box fan’s removal. I am satisfied PE could have considered issuing this sooner, possibly after the refusal of application 4 in September. I say this because of the owner’s history and the suspicion by PE of the owner having his own motive delaying complying with planning law. The injustice arising from this is the enforcement notice could have been issued 2 months earlier. This in turn meant the Council could have considered prosecuting the owner 2 months earlier than it did.
9. I am not satisfied this caused Mr Y a significant injustice. This is because the owner went on to submit application 5 which was likely to have meant the Council suspending action while determining it. To pursue a prosecution at that stage would leave it vulnerable at court as the owner could argue the Council had yet to decide it.
10. In February 2019, PE had authority to pursue the owners for non-compliance of the notice.
11. The following month, the Council received application 5 which was eventually granted in July. As noted, the Council was vulnerable if it proceeded to carry on with enforcement action when it received this application. This was because the owner could have defended proceedings by pointing out there was now an outstanding application to consider which might result in him receiving consent. In response to my draft decision, the Council pointed out application 5 was acceptable in principle.
12. I accept the Council was placed in a difficult position by the owner. In response to my draft decision, the Council said there was no evidence the owner deliberately attempted to delay resolving the situation and small businesses tend to need more support. I consider it unlikely for a council to have direct evidence of an applicant deliberately delaying acting to resolve the situation. An applicant’s intention to frustrate the process is more likely to be inferred through a course of action such as submitting similar planning applications, appealing them, and then not pursuing the appeals properly. This was a concern the PE identified when it raised the question of whether this was a ‘game’ to the applicant.
13. During the time it took to resolve this situation, Mr Y, his family, and other residents, were caused some disturbance and nuisance from installations for which the owners never had planning consent. The Council accepted there were deficiencies in the speed and quality of information provided in support of planning applications, but this is not unusual. It also noted Mr Y objected to all proposals to remedy the situation.

Environmental Protection:

56. I note the following on this complaint:
1. In 2017, EP received reports of nuisance about the flue. Officers visited and decided the problem might be due to vibrations. The owner was asked about fitting rubber mounts to reduce this which he agreed to do. Following a further visit, EP decided there was no longer a nuisance from the flue and closed its case.
2. EP received reports from Mr Y in July 2018 after the business removed the flue and fitted a box fan. Officers visited the following month, carried out monitoring on site, and wrote a warning letter to the business owner in September. Due to the parallel involvement of PE, the legal team decided PE should take the lead on the case. Following another visit in November, EP decided to issue an abatement notice the same month. The owner had until February 2019 to comply with it.
3. In November 2018, EP gave the business owner the chance to make improvements to the fan as a temporary measure while it remained in place. While the suggestion was well intentioned, I agree with concerns about this approach raised by PE who were pursuing its removal. It also caused understandable confusion for Mrs Y and sent conflicting signals to the owner. I consider EP should have discussed this with PE, who were given the lead, before suggesting improvements. I consider the failure to do so was fault. In its response to my draft decision, the Council disagreed with this conclusion. I remain satisfied this was a failure to communicate and co-ordinate with PE about a considered unified approach to take. The concerns raised by PE at the time also carry some weight.
4. I consider this caused an injustice as it distressed Mr Y and his family who saw this as contradictory approaches.
5. After the deadline for complying with the notice expired, EP visited and found the owner had failed to comply with it. Shortly after, the Council received application 5 but, this was invalid. At this point, and because of the receipt of the application, EP decided not to take any further enforcement action about the failure to comply with the abatement notice. This was because if approved, the system installed would meet the requirements set out in that notice.
6. I consider this was fault as EP should have discussed this first with PE to explore the potential implications of the decision given the owner’s history which included failing to: send all that was required to make a valid application (application 5 was not immediately valid); send all the information EP needed to be able to comment on an application; pursue appeals when lodged, and make appeals against refusal decisions.
7. In its response to my draft decision, the Council argued I put too much emphasis on PE taking a lead role. While I appreciate the different roles, powers, and decision-making structures within the Council for the 2 departments, giving one department the lead must mean something otherwise it served no purpose. As a minimum, I would expect this to mean communication and co-ordination between the 2 teams about possible approaches and their consequences.
8. The Council also pointed out application 5 was submitted with minor technical problems which could easily be rectified and did not hinder the application proceeding. It also said there was discussion between PE and EP. While these points may well be valid, PE noted the decision made at that point in time was, in its opinion, premature. Again, this piece of evidence was given due weight.
9. On balance, I am satisfied this failure caused Mr Y some injustice. This is because it caused some distress as this added to their sense of frustration with the situation generally and the lost opportunity to pursue the owner.

Complaint

57. Mr Y said he complained to the Council about its actions, but this was rejected in August 2018 as there was an open planning application. I have not seen this correspondence.
58. I have seen the Council’s response under stage 1 of its complaint’s procedure. It sent this in November 2018 and referred to emails received from him in October and November. It did not uphold his complaint and failed to signpost him to stage 2 if he remained dissatisfied.
59. On 4 December, Mr Y sent the Council his request for the complaint to go to stage 2 which it acknowledged. It told him he should receive a response by 3 January 2019. Four days after this date, Mr Y chased the Council as he had not received it. The Council said it emailed him on 3 January, a copy of which I have seen. The email suggested he met with officers. The Council sent Mr Y its stage 2 response on 11 January.

Analysis

60. The Council’s complaints policy has 2 stages:

• Stage 1: The Council will send a response within 10 working days. It will outline the decision and explain a person who is dissatisfied with the response can ask to go to stage 2: and
• Stage 2: This is an appeal to the customer relations manager. A full response is sent within 15 working days.

61. I have not seen the email correspondence between Mr Y and the Council for August 2018 so cannot say whether the Council was justified in refusing to deal with any complaint at that stage.
62. I found no fault on this complaint because I am satisfied the Council dealt with Mr Y’s complaint according to its complaints procedure. While Mr Y says he did not receive the 3 January 2019 email, I am satisfied it was sent to him. This advised him about the Christmas/New Year holiday period delaying his complaints progress. It proposed a meeting to explore what areas of complaint it may and may not be able to investigate and suggested a meeting.

Agreed action

63. I considered our guidance on remedies.
64. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Mr Y an apology for the failures to: discuss EP’s suggestion of improvements with PE; and, failing to discuss EP’s decision to not take enforcement action because of application 5 with PE;
2. Start a review of how EP and PE handled Mr Y’s reports to see what lessons can be learned for joint cases in the future;
3. Look at whether guidance for officers is needed about liaison and co-operation between different teams when one is given the ‘lead’ role; and
4. Pay £200 to Mr Y for the avoidable distress caused by the identified faults which includes the ongoing stress, inconvenience, and frustration it all caused.

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Final decision

65. The Ombudsman found fault on 2 of Mr Y’s complaints against the Council. The agreed action remedies the injustice caused. While finding fault on another complaint, this caused no injustice.

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Parts of the complaint that I did not investigate

66. I did not investigate any complaint Mr Y may have about the Council’s actions taking place before January 2018. This is because he complained to the Ombudsman about the Council in January 2019. The law says 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.

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Investigator's decision on behalf of the Ombudsman