Summary: Mrs B complains the Council did not take enforcement action against noise and odour from a takeaway below her flat for several years. She says the noise prevented her from sleeping and eventually meant she had to sell her flat and move. The Ombudsman finds fault in the delay in the Council acting on a statutory nuisance and in its handling of the case.

The complaint

1. The complainant, who I refer to as Mrs B, complains the Council did not act to stop noise and odour from a takeaway below her flat. She says the Council identified that this was a statutory nuisance in 2015 but still had not enforced against this in 2022. Mrs B had to sell her flat and move to an area further away, as she could not afford to buy elsewhere in the local area. Mrs B also says the takeaway was operating without planning permission.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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)

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How I considered this complaint

5. I considered the information Mrs B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council before making a final decision.

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What I found

Law and Guidance

6. Planning permission is required for the development of land (including its material change of use).
7. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
8. The use classes have changed over time. At the time relevant to this case, the following use classes were in effect:
• A3 – which allowed the sale of food and drink for consumption on the premises, or of hot food for consumption off the premises
• A5 – which allowed the sale of hot food for consumption off the premises
9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles or equipment
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
10. 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.
11. If a business is prosecuted for failing to comply with a statutory nuisance, one defence it might raise is 'best practicable means'. This is where the business considers it has taken the best measures it can to reduce the nuisance. If the council believes the business is likely to be successful in a best practicable means defence, it may decide not to prosecute.

Background

12. Until recently Mrs B lived in a flat above a takeaway. The business was not always a takeaway but obtained the following planning permissions over time:
• March 2006 – approval for change of use to A3
• October 2006 - permission to extend the opening hours
• 2007 – approval for a change of use to A3 and A5
• 2010 – permission to further extend the opening hours
13. Mrs B first complained about nuisance from the takeaway in June 2015. She said there was noise and vibration from the extractor system throughout the day and evening. Officers visited the premises but did not find the noise amounted to a statutory nuisance at this time.
14. Mrs B complained again in August 2016. She said the flue from the extractor system had fallen off. There were ongoing issues with noise and also smell and smoke from the remaining part of the flue.
15. The Council visited the premises again in September 2016. On this occasion it identified there was likely a statutory nuisance. It provided Mrs B with diary sheets to complete. It then visited in October 2016 and witnessed odour and noise nuisance from the extraction system. The Council served the owner with two abatement notices, one for noise and the other for odour, with a compliance period of four months. It advised the owner to consult an extraction specialist to find a resolution.
16. In December 2016 the owner made a planning application for a replacement of the extraction flue. The compliance period for the abatement notices ended in February 2017. The Council decided not to prosecute the owner at this point as he was taking steps to address the notice through the planning application. The Council had contact with the owner’s extraction specialist and believed the new flue would resolve the problems.
17. Mrs B reported that the nuisance was continuing throughout 2017. The Council visited again in June 2017 and found no further progress, but the planning application was ongoing. In October 2017 the Council rejected the planning application on the grounds of its visual appearance and because it had not received enough information to properly assess the impact of noise and vibration.
18. The Council believed the owner would have a best practicable means defence if it prosecuted for breach of the abatement notice, as they were trying to remedy the situation through the planning route. The Council therefore decided its planning enforcement team would take the lead on resolving the problem.
19. The Council served an enforcement notice for, ‘without planning permission the instalment of an exterior extraction flue’. This suggests the owner installed the new flue anyway, despite the Council declining planning permission.
20. The Council served the notice in March 2018. It says that due to workload pressures it did not do this in line with the timescales in its enforcement procedures. In April 2018, the owner appealed to the Planning Inspectorate against the enforcement notice.
21. In August 2018, the Council decided to continue with enforcement against the abatement notice, as the Planning Inspectorate could take up to 12 months to make a decision. It visited the site again and found there was still a statutory nuisance, in breach of the abatement notice. It sent a warning to the owner and obtained further noise diaries from Mrs B. The Council told the owner the following actions would comply with the abatement notice:
• Immediately appoint an extraction consultant to advise on a temporary remedy to ensure compliance with the notice, or
• Make a further planning application addressing the extract and noise and odour issue
22. The owner submitted a further planning application in September 2018. The Council refused the application in November 2018, for the same reasons as before, as outlined at Paragraph 17.
23. In December 2018, the Planning Inspectorate confirmed it had dismissed the owner’s appeal. The Council wrote to the owner in January 2019 to say the flue must not be used and must be removed by March 2019 to comply with the enforcement notice. The owner removed the flue, meaning again the extraction system was venting from a hole in the wall and the fan and system was still in use. The owner submitted a third application for replacement of the extraction system.
24. The Council visited in March 2019 and did not witness a nuisance. However, it said the extraction system was still audible. It installed noise recording equipment in Mrs B’s property in April 2019. This showed evidence of a nuisance still occurring. The Council therefore decided to prosecute against the abatement notice.
25. In June 2019 the Council refused the further planning application for the same reasons again.
26. The Council says its prosecution was delayed due to staff shortages. In October 2019 it instructed external lawyers to lead on the prosecution. A court case was confirmed for 27 March 2020. However, the case was adjourned because of court closures due to the pandemic. A new date was set for July 2020.
27. The owner made a fourth planning application in June 2020. The Council refused the application in August 2020, once again for the same reasons.
28. The court date was adjourned again by the court until March 2021, due to coronavirus. It was then adjourned again to October 2021, due to unavailability of a Council witness, due to ill health.
29. Mrs B made a formal complaint to the Council in June 2021. The Council’s response said it had been a long and complicated case. It said there had been some periods of delay in responding but overall it considered it had taken the best approach to resolve the issues. It said it remained committed to stopping the nuisance.
30. Mrs B escalated her complaint to stage two. In its stage two response the Council said it understood Mrs B would have expected the Council to have acted more swiftly to address the nuisance and apologised for the time taken.
31. In October 2021 the Council withdrew the prosecution. Mrs B indicated the judge considered fresh witness statements would need to be taken because because of the length of time passed. She said she could not go through all that again as it had made her unwell. The Council says Mrs B indicated she was looking to move house and was not sure she wanted to proceed with the case.
32. When I spoke to Mrs B she was hopeful that a sale of the property would go through, but it was not yet confirmed. The Council’s response to my enquiries suggests Mrs B has now sold and moved away. It says it has not had any complaints as of yet from the new occupier so is not taking any further action at this time.
33. In its response to my enquiries the Council set out reasons for each of the decisions it took at each point in time. However, it accepted the length of time taken to address the nuisance was unreasonable and offered to pay Mrs B £500 in recognition of the distress caused, and time and trouble bringing complaints over several years.

Findings

34. Mrs B raised two concerns:
• The Council delayed in acting to prevent a statutory nuisance
• The Council allowed the takeaway to operate without planning permission

Delay in acting on statutory nuisance

35. I find fault in the overall delays dealing with Mrs B’s complaint about statutory nuisance.
36. The Council did not need to immediately prosecute the takeaway following service of the abatement notice in October 2016. It is normal for councils to work with businesses to reduce any nuisance to an acceptable level, before resorting to prosecution. In this case the owner submitted a planning application for a new flue that the Council believed would alleviate the problem. It is worth noting the Council only found a statutory nuisance after the original flue had fallen off. That does not necessarily mean there was no nuisance beforehand, only that the Council considered a suitable replacement would be effective in reducing the noise and odour. I therefore do not find fault in the Council’s initial course of action. It was entitled to decide not to prosecute on the basis the takeaway would have a best practicable means defence, as it had applied for planning permission. Although I note it took 10 months for the Council to decide the planning application, throughout which time the nuisance was ongoing.
37. It is more difficult to follow the Council’s rationale for its planning enforcement team taking the lead after refusal of planning permission. The fact the Council served an enforcement notice for installing a flue, suggests the owner installed it anyway, and yet a nuisance still existed. Enforcing removal of the flue would do nothing to abate the nuisance. In fact, the nuisance would likely have become worse again without any flue at all. It may be the Council was using this route to encourage the owner to apply again for planning permission for a more effective flue, but the planning enforcement team had no powers to require it to do that. It could only require them to remove the flue. So, it is difficult to understand how it could effectively lead the response to the nuisance.
38. There was also a significant delay of five months between planning permission being refused, and the team serving the enforcement notice. I understand this was due to staffing pressures, but it still amounts to a service failure, which is fault.
39. I can see that after the owner appealed to the planning inspectorate, the Council decided to enforce the abatement notice and sent a warning notice to the owner. However, this was not until four months afterwards, which added to the delay.
40. After refusing a second planning application, the Council seems to have reverted to enforcing removal of the flue, which again would not have stopped the nuisance. This added a further delay of four months, during which Mrs B had to complete further diaries, despite the nuisance being long established, before the Council decided to prosecute in April 2019.
41. The Council then did not act to prosecute for another six months, until October 2019. Again, I understand this was due to staff shortages, but it represents a service failure, which is fault. It meant by that time Mrs B had lived with an identified statutory nuisance for at least three years.
42. There were further delays following this, due to court dates being postponed, including because courts were suspended during the pandemic. I cannot find fault with the Council for those further delays, as it was part of the court procedure, which is outside our jurisdiction, and outside the Council’s control. However, had it not been for the earlier delays, the prosecution might have gone ahead before coronavirus became an issue.
43. Overall, there were significant delays in the Council’s handling of the case, and a lack of urgency at each stage, despite Mrs B having lived with the nuisance for long periods of time. I also cannot see any evidence of a coordinated plan to deal with the nuisance, given the passing back and forth of the case between the environmental health and planning enforcement teams. I understand why the Council wanted to work with the takeaway rather than causing it to stop operating. However, the planning enforcement team had no real powers to take action that would abate the nuisance. Therefore, I find fault in both the delays and the Council’s overall handling of the case.

Operating without planning permission

44. I do not find fault on this point. I can see the takeaway had A3 and A5 planning permission, which covers the type of business of a takeaway. Therefore, my understanding is the takeaway did have the relevant planning permission.

Consideration of remedy

45. The Council has accepted the overall delays were fault. It has offered to apologise and pay Mrs B £500 to recognise the distress and inconvenience caused.
46. We will always consider suggested remedies from councils. It is clear the ongoing nuisance caused significant distress to Mrs B over a long period. Our guidance on remedies says that normally we will recommend between £100 to £300 to recognise distress, or more where that distress is significant. I am therefore of the view the Council’s offer of £500 is in line with the amount I would have recommend in this case.

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Agreed action

47. The Council has agreed to, within a month of this decision:
• Apologise to Mrs B for the delay and fault in the handling of the case
• Pay Mrs B £500 to recognise the distress caused

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Final decision

48. The Council is at fault in the delay acting on a statutory nuisance and in its overall handling of the case.

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Investigator's decision on behalf of the Ombudsman