Summary: We will not investigate this complaint about the way the Council dealt with the complainants’ reports of breaches of planning control, noise and odour issues and fire risk at a restaurant opposite the complainant’s home. We are unlikely to find fault in the Council’s actions and further investigation is unlikely to lead to a different outcome.

The complaint

1. The complainant, I shall call Mr X, says the Council failed to act on:
• his reports of breaches of planning control
• complaints about odour, noise, and dust; and
• breaches of the existing licence

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating
• further investigation would not lead to a different outcome

(Local Government Act 1974, section 24A(6))

3. We cannot question whether an organisation’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)

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X complained to the Council that a restaurant close to his home was:
• breaching planning control
• was causing a fire risk
• allowing odours from a ventilation pipe and refuse bins; and
• had breached an existing licence
7. Environmental Health Officers visited Mr X’s home. They did not witness a statutory nuisance from odour. Mr X was told to keep records of when the ventilation pipe expelled odours and Officers would revisit. Likewise, he should provide records of dates and times when there is nuisance from dust and noise and the Officers will consider these.
8. The Council told Mr X it had received a retrospective planning application which, if approved, would regularise most of the breaches. Therefore, it decided not to take enforcement action until it had decided whether to approve the planning application. However, it also confirmed the removal of trees from the site is not covered by the application and it is considering what action (if any) to take about this.
9. The Council also confirmed it passed concerns about fire risk to the local fire and rescue service and gave Mr X the contact details.
10. The restaurant owner must apply to the Council to vary the license. This will be publicised in the press when it is received, and Mr X will be able to comment.
11. The Council considered the retrospective planning application. The case officer wrote a report on the scheme.
12. When a local authority receives a planning application it must look at the development plan and material planning considerations to decide if the proposal is acceptable. Material considerations relate to the use and development of the land in the public interest and includes matters such as the impact on neighbouring properties and the relevant planning policies. It is for the decision maker to decide the weight to be given to any material considerations in determining a planning application.
13. The Ombudsman does not act as an appeal body for planning decisions. Instead, we consider if there was any fault with how the decision was made.
14. From the information I have seen, I am satisfied the Council properly assessed the application, including the impact the development has on neighbouring properties and the surrounding area, before granting retrospective planning permission. The case officer’s report referred to Mr X’s objections and addressed her concerns. The officer decided the development was acceptable and recommended approval with conditions to control (among other things):
• Hours of opening
• Hours for the use of the outdoor area
• Council approval of the ventilation system before the new kitchen comes into use
• Location for bin storage to be found on site.
15. I understand Mrs X disagrees with the Council’s decision to grant planning permission. But the Council was entitled to use its professional judgement to decide the application was acceptable and the Ombudsman cannot question this decision unless it was tainted by fault. As the Council properly considered the application, it is unlikely I could find fault.

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Final decision

16. We will not investigate Mr X’s complaint because the information we have seen shows the Council considered Mr X’s concerns. We are unlikely to find fault in the Council’s actions. And further investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman