Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action following Mr X’s reports of a breach of planning control. Nor will we investigate his concerns that the Council has failed to find a nearby business to be causing a statutory noise nuisance.

The complaint

1. Mr X complains the Council refuses to take enforcement action against a new extractor fan which has been installed on a nearby takeaway.
2. He says the noise causes physical pain and prevents him and his family from using their garden.

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The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

6. Mr X complains the Council refuses to take enforcement action against a business near to his home. He says the business installed a new extractor fan without planning permission which causes a noise nuisance.
7. The Council has explained an Officer originally considered the new fan needed planning permission. However, it has reviewed the matter.
8. Section 55 Town and Country Planning Act 1990 states:

“Meaning of “development” and “new development”.

“(1)Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.”

and

“(2)The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

(a)the carrying out for the maintenance, improvement, or other alteration of any building of works which—

(i)affect only the interior of the building, or

(ii)do not materially affect the external appearance of the building, and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground;

9. The Council states the replacement flue does not require planning permission because there is no material effect to the external appearance of the building. This is because it is in the same place as that which previously existed. As no planning permission is required, the Council is satisfied there is no breach of planning control.
10. I understand Mr X disagrees with the Council. However, it is satisfied there is no breach of planning control. Having investigated this point, this is a decision the Council is entitled to make and one which the Ombudsman cannot question.
11. Mr X also complains the business is causing a noise nuisance.
12. Officers have visited Mr X’s home four times on different days and at different times. They have not witnessed a statutory noise nuisance. The Council has advised Mr X of his right to take his own legal action in the magistrates’ court on the noise issue.
13. It is not our role to act as a point of appeal against decisions made by councils with which complainants disagree. We cannot question council decisions if they have followed the right steps and considered the relevant evidence and information. The Council investigated and came to a view based on the evidence available. It is unlikely further investigation would find fault in how the Council made its decision and therefore we cannot question the outcome.

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Final decision

14. We will not investigate Mr X’s complaint because we have not seen enough evidence of fault to justify an investigation.

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Investigator's decision on behalf of the Ombudsman