Summary: Mr X complained the Council failed to protect him from noise and odour nuisance from a business below his home. There was no fault in the way the Council made its decisions relating to Mr X’s allegations.

The complaint

1. Mr X complained the Council failed to protect him from a business that operates from a unit below his home. Mr X says that his amenities have been affected by:
• noise from the business, including a hand dryer and live music; and
• odour from the business’ kitchen.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I made enquiries of the Council and interviewed its officers.
5. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Relevant law and guidance

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

Environmental health function

11. Councils have statutory power to enforce environmental protection measures in their areas. They can control nuisance caused by pollution, from things like noise, dust, smoke and odour by issuing abatement notices.
12. Environmental health officers may also provide advice to other departments, including advice on planning applications on what the impact a development or land use might have on the environment. They may recommend conditions to protect public amenity.

Building control function

13. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
14. Building regulations approval can be granted by Council’s acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
15. There are two ways a building owner can get building regulations approval. These are:
• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the council or approved inspector of their intention to begin building work. The BCO/approved inspector will visit the site at various stages of the work to check compliance with building regulations.
16. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

Background

17. Mr X lives in a property owned by the Council. The ground floor was once a shop, but it is now let to a café business. The café also includes a basement area. The café has changed hands during the time period about which Mr X now complains. The first floor is the apartment where Mr X lives.
18. In 2018 the Council received a planning application to change the use of the business premises, from a shop to a mixed use, shop, café, bar. The applicant said that music lessons would be given on occasions in the basement. The applicant submitted an acoustic report from an independent consultant about the likely noise impact caused by the proposed use.
19. The Council consulted with its environmental health (EH) officers, who considered the application along with the acoustic report. They responded to say they had no objection to the application and recommended a condition to control the hours of use for the premises.
20. The Council approved the application along with planning conditions.
21. Mr X complained about noise from the new business and his complaint was considered by a planning enforcement officer. An EH officer considered the planning approval along with conditions but found no evidence to justify enforcement action.
22. Mr X complained to the Council’s building control officers (BCOs). He complained that work had been carried out inside the property that had not been approved by a building control inspector or officer. The Council invited the business’ architects to submit information to show how works had been completed, but they did not respond.
23. The Council explained that because it had requested a ‘regularisation’ application (one for which the work had allegedly already been carried out) it had limited powers. The change of use from shop to a mixed use had been a planning matter. The Council said that there had been no building control approval since 1992, and so there had been no ‘change of use’ it could control using building control powers. For these reasons, it could not insist the occupier/their architect provide information relating to the structure of the building.
24. Mr X also complained to EH officers about the noise and smells coming from the business.
25. The Council’s EH officer said that they had received complaints from Mr X about music from a piano, Mr X was told to contact the Council’s Response Service, which could send an officer to witness noise. The Response Service operates during the day as well as weekends, late evenings and early mornings. Mr X was also asked to complete noise diaries.
26. The EH officer said that Mr X did not always contact the Response Service, but on occasions when he did, it responded quickly. When he contacted officers by email, it would take longer to respond. However, whenever officers visited the site, or returned calls to Mr X, the noise had already stopped.
27. The EH officer arranged a site visit to witness the problem from his home. When officers arrived, they found Mr X’s home difficult to access because rooms and passageways were obstructed by his possessions. However, they said they did not find evidence of a nuisance.
28. During the COVID–19 lockdown, the business began using a hand dryer in its bathrooms. Mr X complained about the noise. The EH officer explained that when investigations resumed, they did not include visits inside buildings. Officers could only witness alleged noise nuisances from street level. The officer said that she had listened from outside the building, but the dryer was not audible.
29. The EH officer contacted the business owner, who agreed to use paper towels instead of the dryer, and that complaints about the dryer ended shortly afterwards.
30. The Council received complaints about an extractor fan and air conditioning unit that was placed at the rear of the building.
31. The EH officer visited the site and listened to the machines when turned onto full power. She did not consider the noise they generated amounted to a nuisance. However, the works required planning permission, and this was a matter for the planning authority.
32. The EH officer said that she and her colleagues had attempted to visit Mr X’s home again last year, but decided it was unsafe to enter because of the obstructions to access passageways. They told Mr X they were willing to come back if the property was cleared. They referred the situation to housing officers, who might be able to offer help to Mr X. The EH file remains open, pending access to his home, though no statutory noise nuisance has been found so far.
33. The Council received a planning application for the change of use of the building from mixed use (shop, café and bar) to the government’s new use class, E(b), sale of food and drink for consumption mostly on the premises. The application included a request for retention of the extractor fan and air conditioning unit.
34. The application was supported by an acoustic report and an odour impact assessment. Mr X objected to the application. The Council’s planning case officer wrote a summary of the issues. The case officer’s summary included:
• a description of the proposal and site; and
• comments from neighbours.
35. The application was approved subject to conditions to control noise, vibration and odour. The decision notice included an ‘informative’ note, setting out the reasons for the approval and a list of policies considered relevant.

My findings

36. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
37. Mr X is unhappy with the Council because he feels it did not do enough to protect him from noise and odour from the business below his home.
38. I have not seen any evidence to show there was fault the way the Council’s decisions were made.
39. The Council was aware of its enforcement powers under planning, environmental health and building control statutes and regulations. It considered planning applications for the change of use of the premises, but took account of the applications, objections, relevant policy and other material considerations before it approved them.
40. Its efforts were, on occasions, hampered by factors outside its control, but when it was able to consider what happened it found no reasons to take enforcement actions.
41. We are not an appeal body for decisions and judgements made in the absence of fault in the decision-making processes.

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Final decision

42. I have completed my investigation, as there was no fault in the way the Council made its decisions.

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Investigator's decision on behalf of the Ombudsman