Summary: There was no fault, in the Council’s decision not to take enforcement action against a breach of planning control; nor in its decision there was no statutory nuisance arising from the breach. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mr V.
2. Mr V complains the Council has failed to use its planning powers to enforce against the unpermitted installation of a fume extraction system by a takeaway business near his home. He says the noise from the system is intrusive and causes significant disturbance to him and his family.

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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(i), as amended)

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How I considered this complaint

5. I considered evidence provided by Mr V and the Council as well as relevant law, policy and guidance.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Mr V made a previous complaint to us (24 000 091) about the installation of an extraction flue by the takeaway business. He said the flue did not have planning permission and was causing a noise nuisance. We did not investigate that complaint because we found the Council was entitled to decide the flue did not need planning permission; and because it had properly investigated whether the flue was causing a noise nuisance, and was entitled to decide it did not.
8. Mr V’s current complaint concerns the installation of a second, separate extraction flue at the premises.
9. Mr V reported the business had installed the new flue without planning permission on 15 May 2024. The Council acknowledged this and wrote to the owner on 20 May, highlighting the flue may need planning permission and asking them to contact the Council. The owner did so on 29 May and agreed to submit a retrospective planning application.
10. The Council chased this with the owner on 13 June. It also contacted Mr V to update him and advise it would visit the site on 18 June.
11. On 17 June the owner told the Council they intended to submit the planning application that week. The Council told the owner they should switch off the extraction unit until it made a decision on the application.
12. The Council’s planning case officer visited the site on 18 June.
13. Mr V made a formal stage 1 complaint to the Council on 3 July. He said that, despite agreeing the flue had no planning permission, the Council had not taken any enforcement action, and nor had the owner switched it off despite being asked to.
14. The owner submitted the planning application on 12 July.
15. The Council emailed Mr V on 15 July. It said it had now received the planning application, but, while it had asked the owner to switch off the unit in the meantime, it had no power to enforce this unless there was evidence it was causing a nuisance. The Council said it had referred the noise issue to its environmental protection team and encouraged Mr V to continue reporting it.
16. An environmental protection officer visited the site on 17 July. She noted the noise from the flue was not excessive in the rear yard of the business, and decided it did not amount to a statutory nuisance.
17. The Council responded to Mr V’s stage 1 complaint on 22 July. It explained it could only enforce against breaches of planning control, where there was evidence the breach was causing significant harm, and reiterated it had no power to force the owner to stop using the unit unless it was causing a nuisance. The Council also explained the outcome of the visit by the environmental protection team.
18. Mr V responded on the same day. He said it was not true that an officer had visited the site, and also that no-one had assessed the noise from indoors. He asked why it had taken the business three months to submit a planning application.
19. The Council responded on 13 August, declining to escalate his complaint to stage 2, because it did not consider it could add to its previous response. Mr V emailed the Council back to accuse it of lying about its visit, and asked how it could assess the noise without visiting his property.
20. The Council responded on 16 August. It said it had assessed the noise from the rear yard of the business’s property, which was closer to the source of the noise than Mr V’s property, and had decided it was not excessive there. It therefore considered there was no reason for further investigation. The Council signposted Mr V to the Ombudsman if he wished to pursue his complaint further.
21. Mr V referred his complaint to the Ombudsman on 3 September.
22. The Council refused the business’s planning application to retain the flue on 24 October, because it said it had an unacceptable visual impact.
23. Mr V contacted the Council on 18 December to say the business had removed most of the flue, but had now attached the remainder to the original flue.
24. The Council contacted the owner on 14 January 2025 and advised they needed to remove the entire installation. Following some further discussion, the owner notified the Council they wished to replace the flue and intended to submit a new application.
25. On 3 February Mr V contacted the Council to confirm the unit had been switched off and was no longer creating a nuisance, although it still partly remained in place.

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Legislative background

Planning enforcement

26. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
27. 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.
28. 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.

Statutory nuisance

29. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
30. Activities a council might decide are a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.

31. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
32. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
33. A member of the public can also take private action against an alleged nuisance in the magistrates’ court, under section 82 of the EPA. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.

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Analysis

34. When notified of a potential breach of planning control, it is normal for a council to allow the developer an opportunity to submit a retrospective planning application, with the aim of regularising the breach. In this case, the Council contacted the owner within a week of Mr V’s initial contact on 14 May, and by 29 May the owner had confirmed they intended to submit a retrospective application.
35. They then submitted the application on 12 July, approximately six weeks later. Unfortunately the owner had made an error in the form, and it took until 5 September before the Council could formally accept (‘validate’) the application.
36. Although it took longer than ideal for it to receive a valid application, this was not due to any fault by the Council. The Council cannot compel any person to submit a planning application, and nor can it set a formal deadline for a person to do so. While it can consider taking enforcement action as soon as it is aware of a planning breach, the law requires it to approach this proportionately, and given the owner was actively working on the application, I do not consider it was fault for the Council to wait.
37. The Council was also correct to tell Mr V it could not, under planning law, force the owner to switch the unit off in the meantime. Such a power would arise only if the Council decided to take formal enforcement action.
38. In the simple sense there was no similar obstacle to the Council issuing a noise abatement notice, requiring the owner to switch the unit off, under its environmental health powers. The Council’s power to tackle statutory nuisances is an entirely separate enforcement regime, and is not dependent on the outcome of a planning application.
39. However, again, I see no fault here. The Council correctly referred the case to its environmental health team, which quickly sent an officer to carry out a site visit. The officer assessed the noise and decided it did not amount to a statutory nuisance.
40. I note Mr V disputes this visit happened, but I have seen a copy of the officer’s notes and I am satisfied it did. Mr V’s position appears to be based on the fact the officer did not visit his property, and simply assessed the noise from the business’s property. It is common for officers to visit the complainant’s property as part of an investigation into a potential statutory nuisance, but there is no legal requirement for this. And, in this case, the officer decided that, because the noise was not excessive at source, it could not conceivably represent a statutory nuisance at Mr V’s property some distance away. This was a logical conclusion and one the Council was entitled to make.
41. I am conscious that, despite it being several months since the Council refused planning permission, the owner is still yet to entirely remove the unauthorised flue. However, the Council’s decision triggered a right for the owner to appeal to the Planning Inspectorate, and that right does not expire until 24 April. We would not expect the Council to begin enforcement action while there is still a live right of appeal.
42. The Council has also revealed the owner intends to submit a second planning application, having made some changes to the installation. I appreciate this may cause Mr V some frustration, but the Council cannot prevent the owner from submitting an application, and – provided it meets the validation requirements – the Council will be required by law to consider it properly. Refusal will then automatically trigger a further right of appeal for the owner.
43. Either way though, I am conscious Mr V says the unit is no longer in operation and not creating any noise nuisance, which was the main driver behind his complaint.
44. While the flue is still partly installed, and the Council has been firm with the owner it must be removed (notwithstanding any appeal or further application), its reason for this is the unacceptable visual impact, and not because of noise. Even if I had found the Council at fault here – which I have not – I would not consider the existence of an unsightly flue installation, at a nearby property, to represent an injustice significant enough to Mr V to require our intervention. I therefore do not consider there to be anything further to investigate here.
45. If the unit comes back into operation, and Mr V considers it is creating a noise nuisance again, he may report this to the Council’s environmental health team and ask to investigate further. This will be true even if it has planning permission. Alternatively, Mr V can make an application to the magistrates’ court, for it to consider whether the noise represents a statutory nuisance.
46. Mr V also says he believes the business is a front for money laundering, on the basis it does not appear to receive enough customers to sustain itself. This is not a material consideration for either the Council’s planning or environmental health powers; and nor is the Council responsible for investigating money laundering or organised crime. If Mr V wishes to pursue this allegation then he should contact the police.

Addendum

47. In response to my draft decision the Council informed me the business owner fully removed the flue on 21 February 2025. This means the contents of paragraphs 41-45 are no longer material.
48. However, I consider that element of my analysis is still relevant, in that it demonstrates how we consider complaints of this nature, and for this reason I have decided to leave it in this decision statement.

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Decision

49. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman