Summary: Mr X complained the Council failed to properly investigate his reports of a food business operating from a residential property near where he lives. The Council failed to properly investigate Mr X’s reports of a possible statutory nuisance and to keep him informed about its planning enforcement investigation. This caused Mr X avoidable uncertainty, frustration and inconvenience. The Council agreed to apologise, pay Mr X a financial remedy and review its procedures.

The complaint

1. Mr X complained the Council failed to properly investigate his reports of a food business operating from a residential property near where he lives in late 2020. He said the business caused excessive cooking smells and traffic, which meant that he and other residents could not enjoy their gardens and were inconvenienced by traffic noise. He wanted the Council to instruct the business to close or move its operations.

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The Ombudsman’s role and powers

2. 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)
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 considered:
• the information Mr X provided, and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

Planning permission and enforcement

6. Planning permission is required for the development of land (including its material change of use).
7. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

Statutory nuisances

8. Councils must take reasonable steps to investigate potential ‘statutory nuisances’. (Environmental Protection Act 1990, section 79)
9. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street; and
• smells from industry, trade or business premises.
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) to gather evidence. They may, for example, ask the complainant to complete diary sheets, or undertake site visits.
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. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.

What happened

13. In August 2020, Mr X told the Council that a catering business was operating from a residential property near his home. He told the Council the cooking smells meant he could not use his garden and there was a significant increase in traffic due to delivery drivers.
14. Officers from the Council’s planning team visited the house in question in late 2020 and found the business operating. The Council sent a notice to the business asking for more information about how the house was being used.
15. The Council says the business confirmed in early 2021 that it was no longer cooking from the property. A follow-up inspection by the Council’s food hygiene team a few months later confirmed that although the property was used for some food preparation, there was no evidence of commercial cooking.
16. Mr X complained to the Council in May 2021 that the Council had not done enough to stop the business operating from the property.
17. Since Mr X’s complaint to the Ombudsman, the business has moved.

My findings

18. The evidence shows the Council was first aware of Mr X’s concerns in August 2020. Since this included a report of smells from an alleged commercial operation, the Council had a duty to take reasonable steps to investigate this as a possible statutory nuisance.
19. However, there is no evidence the Council’s environmental health team investigated the cooking smells. The only visit from the environmental health team was around eight months later when it made a food hygiene inspection. This failure to investigate Mr X’s report of a possible statutory nuisance was fault.
20. It is not our role to decide if there was a statutory nuisance; that was the Council’s responsibility. Therefore, I cannot say whether, had the Council investigated, it would have issued an abatement notice and the cooking smells would have stopped sooner. However, given the planning officers witnessed the business operating in late 2020 there is a real possibility an environmental health officer might have taken action. The uncertainty over the outcome caused Mr X avoidable distress.
21. Planning enforcement action, including due to change of use of premises, is discretionary. The evidence shows the Council sought further information from the business and assessed whether there was an ongoing effect on neighbouring properties. It decided, in early 2021 that it should not take enforcement action. I consider the Council took proportionate action to investigate the breach of planning rules.
22. However, I have not seen evidence that it proactively kept Mr X informed. Given the impact Mr X said the problem was having on him, having to chase the Council for updates caused Mr X avoidable frustration and inconvenience over several months.
23. There is also no evidence the Council’s planning and environmental health teams coordinated their efforts, despite Mr X’s original report mentioning both the change of use and smells.

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Agreed action

24. Within one month of my final decision, the Council will:
• apologise to Mr X for not properly investigating his report of a possible statutory nuisance; and
• pay him £150 for the avoidable uncertainty, frustration and inconvenience it caused him.
25. Within three months of my final decision, the Council will review how its planning enforcement and environmental health teams identify reports which could also require action by the other team to ensure it refers internally where appropriate.

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Final decision

26. I have completed my investigation. The Council failed to properly investigate Mr X’s reports of a possible statutory nuisance and to keep him informed about its planning enforcement investigation. This caused Mr X avoidable uncertainty, frustration and inconvenience. The Council agreed to apologise, pay Mr X a financial remedy and review its procedures.

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Investigator's decision on behalf of the Ombudsman