Ombudsman criticises council for failing to respond to restaurant nuisance complaints

A Brentwood homeowner who suffered years of distress because the council did not properly investigate her concerns about the restaurant next door to her home, has had her complaint upheld by the Local Government and Social Care Ombudsman.

The complainant contacted the council about various nuisances experienced living next door to the restaurant, including noise, smells, drainage of chemicals into their garden, and excess waste. They told the Ombudsman that they could not enjoy their home and garden because of the issues, and their health had been adversely affected.

The homeowner had been reporting nuisances from the restaurant to Brentwood Council since 2018, having repeatedly told the council that the restaurant:

• was in breach of its business licence conditions;
• had failed to comply with a planning condition set by the council in 2017, and then continued to complete further developments without planning permission; and
• was causing her significant issues due to these breaches and associated nuisances.

Brentwood investigated some of the raised concerns and decided there was no statutory noise nuisance. The homeowner asked the council to visit them when the restaurant was busy and the issues were at their worst, but the council did not respond to this request.

The council also spoke to the restaurant about issues with drainage and breaches of its licence conditions, but this did not change anything, and the council did not consider taking any further action.

The homeowner made a formal complaint to the council, but it decided there had been no failings in its planning process, and as there was no evidence of a statutory noise or smell nuisance, it could not take any action.

The resident continued to report issues and escalated the complaint. The council said its decision remained the same.

At this point, the complainant then brought their concerns to the Ombudsman.

The Ombudsman’s investigation found Brentwood did not properly:

• consider the powers it had to take planning enforcement action over a six-year period, after the restaurant failed to comply with a planning condition the council set to protect the woman’s home from being overlooked;
• consider the various nuisances the woman reported via its environmental health enforcement and statutory nuisance procedures;
• communicate with the woman or respond properly to her complaint. The council’s teams did not deal with her concerns in a co-ordinated way, which meant she had to raise the same concerns many times with different teams; and
• have due regard to her human rights, which entitles her to peaceful enjoyment of her home and land.

In this case the council has agreed to apologise to the woman and pay her £3,450 for the distress and uncertainty caused by its failures.

It will also create an action plan to investigate all outstanding issues reported by the woman without delay and decide whether to take any enforcement action.

Brentwood has also agreed to write to other residents who have made similar complaints about the restaurant from 2021 onwards, properly investigate their concerns, and remedy any injustice in line with the Ombudsman’s recommendations in this case.

The council will review its environmental health policies and review its arrangements for collaborative working between its environmental health, licensing, and planning teams to ensure clear processes are in place. It will also issue reminders to relevant staff about the importance of properly responding to all issues raised by a complainant.

Paul Najsarek, Local Government and Social Care Ombudsman, highlighted that councils have a range of ways they can compel businesses to comply with planning and environmental health directions, and should fully explore the powers available to tackle breaches where they cause a nuisance to local people.

“I am pleased the council has accepted the wide-ranging recommendations I have made to improve its processes and procedures. I hope that this will improve the situation for this woman, and others in the area who may have similar issues in future.”

A Brentwood Borough Council spokesperson said: “We accept the findings of the Local Government and Social Care Ombudsman and apologise to the resident involved in the case. The council will undertake the Ombudsman’s recommended actions, which includes an action plan to investigate all outstanding issues reported by the resident. We will also use the recommendations set out to improve the way we deliver our services.”