Summary: Ms X complains about the Council’s failure to take enforcement action against a restaurant which is creating a noise nuisance for her. The noise began after works in July 2022. Ms X says the Council has failed to consider how the noise is a breach of planning guidance, and says the noise is causing her distress. We have found no fault in the actions of the Council.

The complaint

1. Ms X complains about the Council’s failure to take enforcement action against a restaurant which is creating a noise nuisance for her. The noise began after works in July 2022.
2. Ms X says the Council has failed to consider how the noise is a breach of planning guidance, and says the noise is causing her distress.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council were invited to comment on my draft decision. I have consider any comments before making a final decision.

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What I found

Enforcement

7. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
8. 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.
9. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
10. 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 December 2024, paragraph 60)

Enforcement timescales

11. Planning enforcement action is subject to statutory time limits. For breaches prior to 25 April 2024, the council may not take planning enforcement action in the following circumstances:

• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

What happened

12. The Council granted permission for a kitchen extractor to be fitted in a restaurant near Ms X’s property in 1997.
13. Ms X says the restaurant completed works on the extraction system in July 2022 which caused it to become noisy. Ms X says she could hear the noise from her property. Ms X says she agreed with the restaurant it would not use the extraction system and this resolved the noise issue.
14. Ms X says the restaurant was taken over by new owners in 2025 who began using the extraction system again which created a noise nuisance for Ms X.
15. The Council visited Ms X’s property in late March 2025 to assess the noise. When the officer arrived, they asked Ms X where the noise could be heard in her property. Ms X said the noise was affecting her kitchen. The officer advised the kitchen was not classed as a habitable room, and the assessment could not be carried out from there. The officer asked Ms X if her living room was affected and Ms X told them it was her kitchen that was affected.
16. The Council attended Ms X’s property in early June 2025. The officer’s notes from the time say an odour could be smelt and a noise heard from the extractor fan. The officer noted they could hear a low tonal humming from the extractor fan. The officer visited the restaurant and noted there appeared to be an issue with the external silencer and anti-vibration isolators on the fan.
17. The Council emailed the restaurant the following day to ask it to address the cause of noise and queried why the flue was not built in accordance with the plans.
18. The Council contacted Ms X in early July and said it could not take enforcement action, but it had negotiated with the restaurant to install mitigating matters to the extraction system. The officer confirmed the restaurant had completed this work in late July 2025.
19. Ms X queried the Councils approach in late July and asked for an explanation of why the flue was immune from enforcement.
20. The Council responded to say the as-built flue was installed shortly after the planning permission was granted in 1997. Therefore, the four-year rule applied to taking enforcement action. The Council also explained that as something was installed that was materially different to what was approved, any conditions about noise noted are not enforceable.
21. Ms X raised a complaint with the Council in mid-August 2025 and said the Council had not taken any action on reports raised about the flue. Ms X said she was unhappy with the explanation given by the Council about why it could not take any action.
22. The Council responded in late August 2025 and said the flue installed differed from what it agreed in the planning consent. The Council said it had not materially changed in four years and so was no longer enforceable. Any further works on the flue had not materially altered it and did not require planning permission. The Council offered for a noise officer to re-attend if Ms X was still experiencing problems.
23. Ms X raised a stage two complaint in early September and explained she was unhappy with the Council’s response.
24. The Council issued a stage two response in mid-September 2025. The Council said a change of motor in the fan had not changed the appearance of the building and as such was not actionable under building/planning/development regulations. The Council said it would refer any noise issues to its Environmental services team.

Analysis

25. The Council sent an officer to investigate the noise nuisance Ms X said she was experiencing when it became aware of the problem. The officer met with Ms X and explained why a noise assessment could not go ahead.
26. Ms X then raised an issue about enforcement. The Council investigated this and confirmed why it could not take enforcement action against the restaurant. It also explained to Ms X why it considered any noise condition did not apply to the current use of the flue.
27. The Council has again referred any noise nuisance to its Environmental Services Team following its stage two response.
28. 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.
29. The Council has investigated Ms X’s concerns, visited site and explained the reasons for its decision not to take enforcement action. The Council has also negotiated with the restaurant to complete works to reduce any noise from the flue. I have found no fault in the decision making process followed by the Council and as such cannot question the outcome.

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Decision

30. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman