Summary: Mr X complained about how the Council handled his report of a statutory nuisance. We find the Council at fault for its poor communication. This left Mr X uncertain of the outcome of his report and unaware of the alternative options he could pursue. The Council has agreed to apologise and make improvements to its services.

The complaint

1. Mr X complained about the Council’s response to his report that the vapour admitted from his neighbour’s condensing boiler was a statutory nuisance. Specifically, he says the Council:
1. failed to properly investigate the matter;
2. failed to sufficiently contact and communicate with him; and
3. tried to move responsibility to the Building Control team, however the complaint was not submitted as a building control issue.
2. Mr X says the vapour substantially interferes with the use and enjoyment of his home and impacts his physical and mental health.
3. He wants the matter to be looked at by a third party, and the Council to improve its services.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. I spoke with Mr X and considered the information he provided.
7. Written enquiries of the Council were made. I considered its response along with relevant law and guidance.
8. I referred to the Ombudsman’s Guidance on Remedies (a copy of which can be found on our website).
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory nuisance

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
11. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.

12. 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.
13. 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.

What happened

14. In 2023, Mr X’s neighbour installed a condensing boiler, replacing the outlet of the previous non-condensing boiler with the new flue.
15. In April 2024, Mr X reported to the Council that the plume being emitted from the boiler’s flue was causing him and his family a statutory nuisance. He said it was causing them harm, interfering with the enjoyment of their home, adversely affecting their quality of life, and the noise from the boiler could be heard inside their home.
16. Later that month, the Council’s Environmental Health team contacted Mr X to discuss his complaint in more detail. Mr X clarified that while the noise was occasionally audible, he did not believe it to be a significant issue. He advised that his main concern was the vapour spreading over his driveway. The Council says it explained that for the issue to qualify as a statutory nuisance, the vapour would need to be proven both excessive and unreasonable, and shown to materially impact his property. The Environmental Health team referred the matter to the Council’s Building Control team to assess whether the boiler met this threshold and whether it was causing damage to Mr X’s property. The Environmental Health team manager later called Mr X and explained that a correctly installed boiler would only emit vapour, and that Building Control would assess its installation and location.
17. In May, an officer from the Building Control team conducted an unannounced visit to assess the issue. The officer also spent time with Mr X to understand his concern.
18. Later that month, Mr X complained to the Council about the lack of communication and action taken by the Council.
19. In July, Mr X sent the Council a formal complaint, citing delays and poor communication about the investigation of his concern.
20. Later that month, the Council responded, stating that it had actioned his concerns within the agreed timeframe. However, it acknowledged that it could have done more to keep him updated. The Council explained that both the Environmental Health and Building Control team had investigated and found no statutory nuisance. It also noted that Building Control could take no further action, as the boiler had been installed by a Gas Safe registered company.
21. In response to my enquiries the Council has said that the Building Control officer had found no concerns during their inspection, a finding that was discussed with Mr X at the time of the visit. However, the Council admitted it had failed to provide Mr X with written communication explaining his options. Specifically, it had not informed him that:
• He could contact Gas Safe to raise his concerns and request a follow-up with the neighbour.
• He could pursue civil action under Section 82 of the Environmental Protection Act 1990, despite the absence of a proven statutory nuisance.

My findings

22. We are not an appeal body. Our role is to review the process by which decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
23. There is no evidence the Council failed to properly investigate Mr X’s report of a statutory nuisance. The Council:
• discussed the issue with Mr X;
• visited his property; and
• verified the boiler’s Gas Safe certificate.
24. The Council referred the matter to its Building Control team to assess the boilers installation and whether emissions from the flue posed a statutory nuisance. The Building Control officer confirmed the boiler had been correctly installed, and no concerns were identified. There is no evidence of fault in the Council’s actions or decision-making process.
25. The Council has acknowledged its failings in its communication with Mr X. It was at fault for not sharing its decision that a statutory nuisance did not exist and for failing to advise him of his other options. This caused Mr X uncertainty about the outcome of his complaint, and meant he was unaware of the alternative options he could take.
26. Although the Council responded to Mr X’s formal complaint within its published timescales, it did not tell him that he could escalate his complaint to the Ombudsman if he remained dissatisfied. While this is fault, it did not cause Mr X any injustice, as he brought his complaint to the Ombudsman.

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Agreed action

27. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to apologise to Mr X in line with our guidance on Making an effective apology.
28. Within three months of the date of my final decision, the Council has agreed to:
• provide training for the Environmental Health and Building Control teams to ensure all officers understand the importance of communicating the outcomes of their reports and/or visits with residents, and to ensure that all decisions made are properly recorded; and
• issue a reminder to all officers handling complaints about the importance of informing complainants that they can escalate their concerns to the Ombudsman if they are not satisfied with the outcome of their complaint.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed my investigation. I find the Council at fault. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman