Nuisance from smells

This fact sheet is aimed primarily at people who have concerns that the council is not taking action about the nuisance from smells they are experiencing and may be considering making a complaint to the Ombudsman.

I am suffering from unpleasant smells coming from nearby and I am unhappy that the council has done nothing about this. Can the Ombudsman help me?

Yes, in some circumstances. We cannot overrule the council’s decision on whether or not to take action, as it isn’t our role to say whether the smell that you are complaining about is a nuisance in law or whether action must be taken to reduce it. But, if you believe that the council did something wrong in the way it investigated your complaints about the smells and can also show that it caused you problems then we can investigate your complaint.

If you are suffering from smells, you need to let the council know as soon as possible giving details of the smell and the dates and times that it occurred. The council cannot immediately intervene to stop the smell, as it needs to investigate to establish the nature of the problem.

How do I complain?

You should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.

Then, if you are unhappy with the outcome, or the council is taking too long to look into the matter – we think 12 weeks is reasonable – you can complain to us.

You should normally make your complaint to us within 12 months of realising that the council has done something wrong.

To complain to the Ombudsman phone our helpline on 0300 061 0614 (8.30am to 5.00pm, Mondays to Fridays). You will be able to discuss your complaint with one of our advisers. You can text us on 0762 481 1595.

You can complete an online complaint form.

If you can consider my complaint what will the Ombudsman look for?

Councils have a duty to take “reasonably practicable steps” to investigate complaints of various nuisances, including smells arising from industrial or business premises that are prejudicial to health or that cause a nuisance. (They have no powers to deal with cooking odours from domestic properties, unless the property is owned by the council.)

Smells cannot be measured and it is for the council to assess if they amount to a ‘statutory nuisance’ in law and, if so, to take action. The council should take into account Government guidance on how to investigate smell problems. That process can take some time, particularly if the timing of the nuisance from the smell is unpredictable. Some people are troubled by unpleasant smells from time to time, especially those living in rural farming communities, and occasional incidents would not normally be regarded as a statutory nuisance. 

We look at whether the council has done something wrong in the way it has investigated your complaint about smells and, if so, if this has caused you problems. For example, we assess if the fault is likely to have made a difference to the problems you experienced. Some faults we might find are that the council: 

  • did not investigate the complaint properly and establish whether there was a problem from the smell, or established there was a significant problem but failed to do anything about it
  • took too long to investigate the problem, or failed to take enforcement action when informal attempts to resolve the problem failed
  • did not take into account the relevant law, policy or guidance
  • did not explain the outcome of its investigation to you, or
  • made a decision based on inaccurate, incomplete or irrelevant evidence or failed to consider evidence that was available.

What happens if the Ombudsman finds that the council was at fault?

It depends on the fault and how this affected you. We cannot force the council to take action to prevent the smells. But, if we find that you are suffering from them because of the council’s fault we may ask the council to take steps to address the problem. If it has established that there is a serious problem but has not taken action, we may recommend that it consider issuing an abatement notice.

If the council has not investigated the complaint properly or has failed to consider evidence that it should have, we may suggest that the council uses its own officers or outside specialists as independent witnesses to evaluate the smells.

In exceptional cases we may ask the council to pay you compensation, such as where it is not possible to reduce the harm caused or the nuisance has now stopped, but we find that you suffered from it for longer than necessary; or if you took a lot of time and trouble in pursuing your complaint or incurred unnecessary expense.

Where we find fault with the council’s procedures we will often recommend that the council introduces changes, so that the same problem does not occur again in the future.

Examples of some complaints we have considered

Mr P complained about the smell from an extractor fan on the commercial kitchens next to his home. The council visited Mr P’s property. The officer asked Mr P about the smell, how it affected him, how often it happened and the time of day and duration of occurrences. He asked Mr P to complete a diary record of the problem. Two council officers visited Mr P’s home at times they may be able to witness the smell. They followed Government guidance to conduct sniff tests. They recorded and assessed the smell in Mr P’s home and garden on different days. The officers separately decided that, although the smell was unpleasant, it was not a statutory nuisance. The council had investigated the problem properly, following Government guidance and taking account of the relevant law. Although Mr P did not agree with the council, we could not conclude that it had been at fault in how it reached its decision or that it had acted unreasonably.
Mr S complained that his local council failed to take adequate action in response to his complaints about odour and noise from the restaurant next door to him. We found that the council acted properly when he first reported the cooking smells – it visited the site, got evidence of a statutory nuisance and served an abatement notice on the restaurateur. But we were not satisfied that the council took enough action to ensure that the notice was then complied with. It did not keep proper records of the complaints that Mr S made later on, or of the visits that it says that it made. The council eventually issued another abatement notice and started legal action against the restaurant to stop the nuisance. That was well over two years after it found that there was a statutory nuisance. We found that there had been unreasonable delay by the council and said it should ensure it kept detailed records of all letters, calls and visits relating to such complaints. The council also paid Mr S £500.

Other sources of information

If you wish, you can consider taking your own action about the nuisance by complaining directly to the magistrates’ court, under Section 82 of the Environmental Protection Act. But before doing so we suggest that you check the following information sources and take some legal advice.

You will find government guidance on odour nuisance at www.gov.uk/government/publications/odour-guidance-for-local-authorities. You can search in the Publications section of Defra's website for a code of practice on odour nuisance from sewage treatment works and guidance on commercial kitchen exhaust. See www.gov.uk/government/organisations/department-for-environment-food-rural-affairs.

Statutory nuisance – Friends of the Earth information leaflet at www.foe.co.uk/resource/guides/5_2_statutory_nuisance.pdf

Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.

The Local Government and Social Care Ombudsman provides a free, independent and impartial service. We consider complaints about the administrative actions of councils and some other authorities. We cannot question what a council has done simply because someone does not agree with it. If we find something has gone wrong, such as poor service, service failure, delay or bad advice and that a person has suffered as a result the Ombudsman aims to get it put right by recommending a suitable remedy.

July 2013 

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