Summary: Miss C complains the Council failed to respond properly to reports of breaches of planning and building control and nuisance from smoke and light reflections relating to two flues at a neighbouring property. Miss C says she suffers unacceptable nuisance which affected her mental health. We have found no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Miss C, complains on behalf of herself and her mother that the Council has failed to respond properly and take effective action in response to their reports of breaches of planning and building control and nuisance from smoke and light reflections relating to two flues serving two wood burners at a neighbouring property.
2. Miss C says because of the Council’s fault, they have suffered from unacceptable levels of nuisance for longer than necessary which has had a detrimental impact on Miss C’s mental health.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 read the papers provided by Miss C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Miss C with third party details removed. I have explained my draft decision to Miss C and the Council and provided an opportunity for comment.

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What I found

Background and legislation

Statutory nuisance

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

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

8. The Act specifies different things which can constitute a statutory nuisance. Some are general, while some can only be a statutory nuisance if they come from a particular source. Things which can be a statutory nuisance if they come from a ‘premises’ (which can include both domestic and commercial properties) include:

• noise
• smoke, fumes or gases
• artificial light.

Clean Air Act 1993

9. The Clean Air Act 1993 controls the emission of smoke from domestic and industrial premises. It allows councils to create ‘smoke control areas’ which restrict the type of fuels people may burn and the type of appliance they can burn them in. In a smoke control area you can only burn fuel on a list of authorised fuels unless you are using an exempt appliance.
10. Until May 2022, smoke from a domestic chimney in a smoke control area could not be considered a statutory nuisance and could only be subject to enforcement under this power instead. The Environment Act 2021 amended this rule to only apply in Wales, so in England, chimney smoke can now be treated as a statutory nuisance even in a smoke control area. It also remains subject to the regulations of the Clean Air Act.

Planning enforcement

11. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
12. Schedule 2, Part 1 class G of The Town and Country Planning (General Permitted Development) (England) Order sets out when the installation of a flue or chimney is permitted development.
13. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:

• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

14. Section 171B of the Town and Country Planning Act 1990 sets out the time limits within which Council’s are able to take enforcement action. Development becomes immune from enforcement if no action is taken:

• within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out without planning permission of operational development (building, engineering, mining or other operations) in, on, over or under land
• within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse
• within ten years, for any other breach of planning control.

15. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.

Building Control

16. Councils may take action to protect the public if it considers a building or structure in its area to be unsafe. Councils may order works to improve defective, dangerous or dilapidated buildings or structures. If the building owner does not comply with the order, the Council may carry out the works and charge for its costs.
17. Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Regulations set standards for the design and construction of buildings and also ensure the health and safety of people in and about those buildings.  'Approved documents' give examples of how the Regulations can be met, but these examples do not have to be followed.
18. A Council may inspect work or issue a completion certificate, but this is not a guarantee that all works meet with Building Regulations. The Council’s role is to maintain building standards for the public in general, rather than to protect the private interests of individuals.
19. A local authority has a general duty to enforce the building regulations in its area and will seek to do so by informal means wherever possible. If informal enforcement does not achieve compliance with the regulations the local authority has two formal enforcement powers which it may use in appropriate cases.
20. First, if a person carrying out building work contravenes the Building Regulations, the local authority may prosecute them in the Magistrates' Court where an unlimited fine may be imposed (sections 35 and 35A of the Building Act 1984). Prosecution is possible up to two years after the completion of the offending work.
21. Alternatively, or in addition, the local authority may serve an enforcement notice on the building owner requiring alteration or removal of work which contravenes the regulations (section 36 of the 1984 Act). If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner. A section 36 enforcement notice cannot be served on you after the expiration of 12 months from the date of completion of the building work.

Key events

22. Miss C’s mother lives next door to a property which had two wood burning stoves. There was a stove in the lounge and in the kitchen which is in a rear extension to the property. Both were served by separate flues or chimneys. The kitchen stove was served by a metal (silver appearance) flue. Miss C lived and worked at the property during the period of this complaint.
23. Miss C reported smoke from her neigbour’s property at the end of November 2020. The Council completed a site visit in early December and noted a smell of burning and dark smoke from a kitchen chimney. The Council took photographs and a video during this visit. The Council also visited the property in mid-December and noted some roof tiles were out of alignment but did not identify any loose tiles that required action.
24. The Council sent a warning letter to Miss C’s neighbour at the end of December to say dark smoke had been witnessed coming from their property. The Council explained they lived in a smoke control area and dark or black smoke from a bonfire, chimney or wood burner was an offence under the Clean Air Act 1993 unless an authorised fuel was being used. The Council warned that further occurrences may result in formal action.
25. Miss C emailed the Council at the end of December 2020 and in January 2021 to report further instances of black smoke and provided a photograph. Miss C explained her mother thought the additional chimney had been added five or six years previously when the kitchen was extended but there was also an older wood burner in the lounge.
26. The Council explained to Miss C that the property was not listed and internal works would not require planning permission. The Council asked Miss C to send a photograph and estimate the height of the chimney/flue which had been installed if it was above the ridge of the original part of the property for it to assess if planning permission was required.
27. The Council subsequently emailed Miss C to set out the planning history of the neighbouring property and noted the chimney had been in place for over four years and was now immune from planning enforcement action. The Council explained its Building Control team was investigating other matters raised by Miss C and the issues relating to potential nuisance would be addressed by its Public Protection team.
28. Miss C asked how the Council had reached the view the structure had been in place for over four years. The Council highlighted this information had been provided by Miss C. The Council also received evidence from Miss C’s neighbour about the date of installation which confirmed this was over four years previously.
29. The Council visited the property in early January and did not witness any smoke. The Council took a photograph.
30. Miss C’s neighbour contacted the Council in mid-January to say they had stopped using their stove.
31. Miss C emailed the Council in mid-January to complain she had not received a call back in response to two telephone reports she had made about dark smoke in mid-December and provided a video. Miss C also suggested the chimney may only have been in place for three years and asking again how the Council reached its view the chimney had been in place for over four years. Miss C also explained she had spoken to her mother who was now unsure when the chimney was erected although this would be over three years ago. Miss C asked for the chimney to be removed and noted it was also causing sun reflections across the garden as it was silver.
32. The Council emailed Miss C at the end of January to confirm it had received evidence from the owner to show the chimney was erected over four years ago. The Council confirmed the chimney was immune from planning enforcement action but Miss C should continue to deal with its Building Control team regarding HETAS certification and its Public Protection team regarding smoke nuisance.
33. The Council provided guidance to Miss C’s neighbour at the end of January about what could be burnt in a smoke control area.
34. Miss C complained about the Council’s response to her reports in mid-February.
35. Miss C reported the smell of smoke from the chimney serving the lounge towards the end of February.
36. The Council sent a further warning letter to Miss C’s neighbour in early March. This stated that to avoid committing an offence under the Clean Air Act 1993 they should use an exempt appliance or use an authorised smokeless fuel and provided details. The Council provided an update to Miss C and asked her to report any further instances of smoke.
37. The Council provided a response to Miss C at the first Stage of its complaints procedure in early March. This referred to the response previously provided that the flue was immune from planning enforcement based on the evidence provided and no further action could be taken in this respect. The Council set out how it had responded to her reports of smoke nuisance.
38. Miss C contacted the Council in early March seeking the removal of the chimney due to the sunlight being reflected from the silver chimney and the continued burning of treated wood. The Council asked if Miss C had witnessed smoke from the chimney. Miss C explained her mother had smelt smoke but her neighbours were not using the wood burner all the time. Miss C suggested both chimneys were still being used.
39. Miss C contacted the Council during March about not being able to work without drawing the curtains due to the reflections from the chimney. The Council asked if there had been further instances of dark smoke. Miss C explained they could not see this as her neighbours lit the wood burners after dark and she had no sense of smell. Miss C asked what could be done about the reflections. The Council explained there was no action that they could take about removing the chimney.
40. Miss C reported in early April that her mother had smelt smoke but could not see from which chimney as it was dark. The Council contacted Miss C’s neighbour who disputed the wood burner had been used.
41. Miss C’s neighbour provided a copy of a HETAS certificate in mid-April for a wood burner that had been installed in the lounge in 2009. The Council noted the appliance was not listed on the exempt appliances list and asked what fuel was used. Miss C’s neighbour provided details of what fuel was used which was confirmed as being an authorised fuel although the neighbour stated the kitchen stove was still not being used.
42. The Council visited the property towards the end of April and found the wood burner without a HETAS certificate in the rear extension had been removed and the stainless flue was capped off. The Council provided an update to Miss C and confirmed there was no current breach of the Clean Air Act.
43. Miss C contacted the Council as she was concerned there was no evidence of what fuel was being used in the kitchen stove which was served by the silver chimney. The Council confirmed to Miss C that her neighbour had provided written confirmation the kitchen stove was not being used and if she witnessed smoke from this chimney she should report this. The Council also confirmed the sunlight reflections were not covered by the statutory nuisance legislation which only applied to artificial light and no action could be taken about this aspect.
44. Miss C raised a concern about the HETAS certificate not being online. The Council confirmed it had received a scanned copy and could only presume it was not available online as it was issued in 2009. Miss C asked whether this related to the first wood burner in the lounge and if the wood burner in the kitchen also had a HETAS certificate. The Council confirmed the certificate related to the lounge wood burner and noted the kitchen wood burner could not be used under the Clean Air Act.
45. Miss C reported smoke from the kitchen chimney in towards the end of April and provided a video. The Council responded to Miss C to say it could not see smoke being emitted from the chimney in the video provided and decided enforcement action could not be taken based on this evidence.
46. The Council visited Miss C in early May and there was discussion about whether the flue could be painted black to address the reflection issue. The Council did not witness smoke from either chimney during this visit.
47. Miss C submitted a further complaint at the end of May about the Council’s response through an advice agency. The Council provided a response in June. A subsequent request to escalate this complaint the following January 2022 was rejected by the Council as being out of time in line with its complaints procedure.
48. At the end of February 2022 Miss C provided a video of the chimney top turning which she considered meant the stove was being used. The Council responded to say there needed to be evidence of smoke being emitted from the chimney.
49. The Council’s Building Control team had advised that because of the passage of time between the installation and report of the wood burners it would not be able to take formal enforcement action. However, the Council inspected the works in mid-March to assess if there were any issues. This visit noted the wood burner in the rear extension had not been reinstated but the flue remained in place which had a rotating cowl which did not generate any significant noise. It was the Council’s view following this inspection that although it had no record of any applications or HETAS certificates for the flues, the flue discharging through the main roof complied with building regulations but the lower level flue did not. The Council wrote to Miss C’s neighbour to advise them of the position and that an informal notice would be placed on the land charges register. The Council advised Miss C it could take no further action in relation to building control matters.

50. Subsequent to the informal notice, Miss C’s neighbour obtained a HETAS certificate for the flue discharging through the main roof confirming it met building regulations and confirmed the wood burner using the lower flue was removed. The Council has noted that once the wood burner was removed there was no requirement to remove the flue.

My consideration

51. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
52. Based on the information provided, I am satisfied the Council properly responded to Miss C’s reports about smoke from the neighbouring property. As set out above, this matter could not at the time be considered as a statutory nuisance under the Environmental Protection Act 1990. The Council correctly considered the reports under the Clean Air Act 1993 and took appropriate action including visiting the site and contacting Miss C’s neighbour about their responsibilities. The Council reviewed the evidence from its own visits as well as from Miss C and her neighbour in reaching its view not to take any further action. I have seen no evidence of fault in how the Council has reached this decision.
53. The Council cannot take action about the sunlight reflections from the flue as the Environmental Act provisions only apply to artificial light sources and has advised Miss C accordingly.
54. Turning to Miss C’s reports of alleged breaches of planning control, I should explain that councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. We cannot investigate the actions of the Miss C’ neighbour only the response of the Council to Miss C’s reports.
55. The Council has explained the flue serving the kitchen would be immune from planning enforcement action due to the passage of time. The Council has provided the evidence it relied on to reach this assessment and I see no fault in its approach here. The flue may also constitute permitted development under Schedule 2, Part 1 class G of The Town and Country Planning (General Permitted Development) (England) Order although this is mute given the immunity from enforcement.
56. The relevant time limits had also passed for formal building control action although the Council visited the property and took informal action in response to Miss C’s concerns. I have seen no evidence of fault on this part of the complaint.
57. I am satisfied based on the evidence provided that the Council considered all relevant considerations, did not consider any irrelevant considerations, and its conclusions were rational. As I have found no evidence of fault in the Council’s decision making process it is not open to me to consider the merits of the decisions it reached.

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Final decision

58. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman