Residents complaining about restaurant odour

Q: We have a restaurant/cafe situated on a sole business zoned site in the middle of a residential area (on the beachfront of one of ***’s beautiful beaches). The residents have been complaining about odour for about 12 months.

I have been out there, with a colleague, and whilst I do detect an odour its about what I'd expect from a cafe. Clearly the intensity of the odour will vary according to wind strength and direction. However, I only smell the odour for the few minutes that I am on-site - the main complainant smells it off and on all day.

Should the residents expect to smell something, or should the restaurant be expected to completely eliminate the odour (and if so, how?).  The restaurant has been there for 8-10 years, but a year or two ago they were granted a RC for longer hours.

If we are to make the owner reduce or eliminate odour, what evidence do we have?  As I said, the odour is more or less what I'd expect from a cafe. I suppose we could use affidavits from affected residents.

At the end of the day I think this one is going to end up in Court, but I 'd like to know I've done everything I should be expected to do before that.

Your comments on this will be gratefully appreciated.

Answers:

A: Has the menu or cooking process changed recently?  The "fact" that a nuisance is being reported by complaint may mean thatsomething has changed. An example is that a change of cooking medium for deep frying from oil to beef tallow. This has a much stronger smell and can be more objectionable.  In the first instance it would be interesting to see if changes in how/when/what used in the café has any impact on the level of complaint.

I doubt that any complete removal of smell is possible but they may need to look at carbon filter systems or an odour neutraliser in the extraction system. Both seem to work only if they are well maintained and monitored. Both cost more to run than just an air extraction system.

A: Primarily you are the meat in the sandwich between the owner of the restaurant/cafe and the complainant and you need to make a decision as to  just how  your Council should become involved. There are many odours/smells etc which do not cause a nuisance and it becomes a subjective judgement of an odour's hedonistic level to determine if it is or is not a nuisance.

I know that Section 23(c) of the Health Act 1956 requires Councils to cause all proper steps to be taken to secure the abatement of a nuisance but of course the establishment as to whether a nuisance exists is the first step.  Your initial comments below that you have been out there with a colleague and whilst you did detect an odour it was about what you would expect from a cafe leads me to an observation that at the time it was not a nuisance from your point of view. Clearly the length of time observing the "odour" might cause you to change your mind. and perhaps you will have to spend hours of observation in and around the cafe, in the houses of the complainants etc to come to a firm opinion.

You may need a tin of FIDO dog food for your guard dog if you jump to conclusions too soon. Pardon my humour  FIDO is short for "frequency", :intensity" "duration" and "offensiveness".

Now I know the old saying that "One swallow does make a summer" and in the field of odour control this is also a factor. Many people do not register a complaint and reading your note it seems that this is likely the case here, however you should not dismiss the one complainant lightly but do a survey to ascertain whether others are experiencing a similar problem but are not intent upon becoming involved. Sometimes persons who volunteer opinions have a tendency to overstate their concern so be on guard to this.

Ventilation requirements as set out in the First Schedule to the Food Hygiene Regulations 1974 require as far as practicable that they must be adequate to remove objectionable odours, fumes and impurities from the premises and where mechanical ventilation is provided it must be done in a manner that does not create a nuisance.

This of course parallels the provisions of section 29(l) of the Health Act 1956 which states that a nuisance is deemed to be created "Where any trade, business, manufacture, or other undertaking is carried on as to be unnecessarily offensive or likely to be injurious to health."

Somebody and eventually a Court may need to determine what the word "unnecessarily offensive" means.   The elements of public nuisance means a substantial and unreasonable interference with the health, convenience, or comfort of the public generally or with a right common to the general public whilst a private nuisance relates to unreasonable interference with the use and enjoyment of an interest in land.   Just whether your Council should or should not pursue the matter or whether the dwelling occupier(s) should deal with the issue as a private nuisance may devolve upon close co-operation of all three parties to try and amicably resolve the issue.

You ask whether the restaurant owner should be asked to "completely" eliminate the odour.  My view is NO but only to the extent that the odour is not "unnecessarily offensive".The cafe owner has Resource Consent rights to be there and operate. The elimination is only required as far as may be practicable to remove objectionable odours, fumes and impurities from the premises. "If" mechanical ventilation is provided it must be done in a manner that does not create a nuisance.

If the cafe operators are doing as much as they can to reduce the impact on the residents by good practice then those residents may have to accept that "all" practicable steps have been taken. Was there anything in the Resource Consent dealing with the elimination of odours etc?

Just what the term "unnecessarily offensive" means is an interesting side track to go down and I incline to the view that since it is contained in a statute that more weight should be given to it that the provisions of Clause 6(d) of the First Schedule use of the word "nuisance"

Anyway what is above is sheer speculation and your attempts to resolve the matter quietly and without litigation should be the major thing in mind. As a beginning I suggest that you should thoroughly and carefully examine just how the cafe operates the cooking process and extraction of the cooking fumes. It may be just a simple thing like increasing the height of the stack on the ventilation system to create better dispersement.

Now I know that Clause 6(e) of the First Schedule allows you as Inspector (EHO) to come up with all sorts of bright ideas where there is a mechanical system but lest this backfire and not abate the nuisance and you and your Council are left holding the baby your real avenue of approach is to look at the cooking process to see if it can be modified, for example as Stephen suggests by using alternative cooking ingredient media and to try and persuade the cafe owner to get an experienced ventilation engineer to examine the process and come up hopefully with a better design filtration system etc.   I guess that there are few, if any, Inspectors out there who have the background, or professional training to meet the exacting requirements of Clause 6(e) otherwise that would likely be making more money by being employed in this field

In view of the possibility of the matter getting out of hand it may be desirable for you to point out to  the proprietor that in the event that a resolution cannot be effected then the cost of legal proceedings either by the council or private action by the affected parts would likely cost much more than getting experienced advice from ventilation and cooking experts.

If you do decide to go down the investigative path then it is really over to you to ask for and obtain detailed descriptions from the adjacent residents covering a lengthy period of time of the effect of the "fumes" upon them.  This would cover weather conditions, wind direction, times of day, intensity of the odour, a description of the odour, observed activity at the cafe and anything else relevant to the geography of the situation.

The obligation of proof rests with your Council in legal proceeding by way of prosecution or injunctive-type process in section 33 and you would need to establish proof by way of calling evidence from the complainant and other neighbours and desirably from other independent persons as to the FIDO aspects of the odour. since a vital issue of nuisance is whether the particular situation complained about is sufficiently noxious to attract liability. The old adage of "according to the ordinary notions prevalent amongst reasonable persons and not the standards demanded by the supersensitive or according merely to elegant or dainty modes and habits of living must be guiding factors in your determination as to what to do,