Summary: Mr X complains about how the Council investigated his complaints of smoke nuisance. The Council is at fault as its communication with Mr X lacked clarity and led him to believe it could investigate the complaints as a statutory nuisance. This raised his expectations and caused avoidable time and trouble to him. The Council has agreed to remedy this injustice by apologising to Mr X and making a payment of £150.

The complaint

1. Mr X complains that the Council:
1. Delayed in investigating his complaint about smoke nuisance from his neighbour’s chimney;
2. Failed to carry out a proper investigation into the complaints of nuisance from the smoke and wrongly decided that the neighbour’s appliance was an exempt appliance and the materials they were burning were authorised for use in a smoke control area.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have:

• considered the complaint and the information provided by Mr X;
• discussed the issues with Mr X;
• made enquiries of the Council and considered the information provided;
• invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

Statutory nuisances

5. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include:

• smoke from premises. Until 1 May 2022 smoke from private premises in smoke control areas was exempt.
• smells from industry, trade or business premises.

6. 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 premises; and / or
• injure health or be likely to injure health.

7. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
8. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
9. The Environment Act 2021 changed the legislation around smoke nuisance. From May 2022 smoke from a wood burner could be considered under the Environmental Protection Act.

Smoke control areas

10. Many parts of the UK are smoke control areas. This means there is a limit on how much smoke can be released from a chimney and people can only burn authorised fuel, unless using an exempt appliance. The Department for Environment, Food and Rural Affairs (DEFRA) holds a list of exempt appliances. Exempt appliances are those which have passed tests to confirm they can burn unauthorised fuels without emitting smoke.

What happened

11. Mr X lives in a smoke control area. In October 2021 Mr X reported to the Council that he was experiencing a strong smell of smoke in his house from a neighbour’s chimney. The Council replied to Mr X setting out its process for investigating smoke nuisance and asked if he wished to proceed with the investigation. In early November 2021 Mr X confirmed that he wanted to proceed. The Council said it did not receive this response.
12. In December 2021 Mr X chased the Council for a response as he continued to experience smoke from the neighbour’s chimney and it was affecting family members with health conditions. An officer sent an email to Mr X explaining that smoke from domestic chimneys was exempt from being a statutory nuisance as it was a smoke control area. Smells from domestic properties were also not covered by statutory nuisance laws. The officer’s email then went onto explain how the Council investigated complaints of statutory nuisance and asked Mr X to keep a written log of the nuisance.
13. Mr X complained to the Council that he was being asked to supply the same information as he had provided in November 2021 and it had not progressed its investigation into his concerns about the smoke. Mr X also contacted his councillor.
14. An officer visited Mr X in late 2021 and provided log sheets for him to record the smoke. Mr X returned these along with videos of the smoke. The Council sent a letter to Mr X’s neighbour advising it was an offence to emit smoke unless they were burning authorised fuel or using an exempt appliance.
15. The neighbour responded to the Council and provided documentary evidence to show he was using an exempt appliance. The Council visited Mr X and provided further log sheets for him to record instances of the smoke. The Council said could assume the problem was resolved and close his case if it did not send in the log sheets within four weeks. Mr X sent the log sheets by email and post but the Council did not receive them so it closed the case.
16. Mr X contacted the investigating officer who confirmed he had not received his logs. Following further correspondence from Mr X, the officer confirmed he could not investigate the matter under statutory nuisance legislation as the chimney is in smoke control area. He acknowledged he should have considered this when the neighbour provided evidence to show he was using an exempt appliance.
17. Mr X made a complaint that the Council had failed to resolve the issue of the smoke from his neighbour’s chimney and what he considered to be poor service by the Council. The Council responded to Mr X at stage one of its complaints procedure. It referred him to the case officer. The Council did not address Mr X’s complaint of delay. Mr X requested his complaint be escalated to stage 2 of the Council’s complaints procedure. The Council responded but outside its target timescale of 20 working days. The Council again did not address his complaint of delay.
18. In response to my enquiries the Council has said:

• Smoke nuisance from a domestic chimney was exempt from statutory nuisance provisions before 1 May 2022. It acknowledges officers should have advised Mr X that the appliance was an exempt appliance and not subject to the statutory nuisance provisions.
• It needs to understand how the changes brought by the Environment Act 2021 is to be used and the Council needs to seek legal opinion on the ramifications. The Council also needs to be clear what is being complained of – whether it is smoke, odour or something else. Smell from domestic premises is not a statutory nuisance.

Analysis

19. Mr X complains the Council delayed in investigating his complaints of smoke nuisance. The delays were caused by the Council not receiving Mr X’s email of November 2021 stating he wished to proceed with the complaint and his logs and videos of the smoke in February 2022. However, I cannot know why the Council did not receive Mr X’s emails or the logs he sent by post and what happened to them. I therefore cannot conclude the delays were caused by fault by the Council.
20. The Council’s communication with Mr X lacked clarity and this is fault. Its email of December 2021 to Mr X explained it could not investigate complaints of smoke from domestic premises as a statutory nuisance. But it then asked Mr X to keep a log of the smoke so it could carry out a statutory nuisance investigation. So, it is understandable that Mr X expected the Council to be investigating the smoke as a statutory nuisance. The Council did not clarify it could not investigate the smoke as a statutory nuisance until March 2021, some six months after Mr X first made his complaint about the smoke. This is fault. As a result Mr X’s expectations were raised and he was put to avoidable time and trouble in keeping the logs and sending them to the Council.
21. The Council made appropriate enquiries as to whether Mr X’s neighbour was using an exempt appliance. But there is no evidence to show whether the Council considered if it should investigate if Mr X’s neighbour was breaching the requirements of the smoke control area and emitting too much smoke. Mr X had provided videos and logs of the smoke so the Council should have considered if there were grounds to investigate a possible breach. On balance, I consider the failure to do so is fault. But I cannot say, on balance, this caused an injustice to Mr X as we cannot know what the outcome of any further investigations would have been.
22. The Council’s responses to Mr X’s complaints were poor as they did not address his complaints of delay. The Council also delayed in responding to Mr X’s stage two complaint by two weeks which will have caused frustration to him. However, the Council apologised for the delay in its response which is an appropriate remedy.
23. The Council has said it will need to seek legal advice on the implications of changes introduced by the Environment Act 2021 for investigating complaints of smoke nuisance. The Council should ensure it seeks this advice in a timely way and considers how it will investigate such complaints.

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Agreed action

24. That the Council will:
1. send a written apology and payment of £150 to Mr X to acknowledge his raised expectations and avoidable time and trouble caused by the lack of clarity in its communications with him. The Council should take this action within one month of my final decision.
2. seek legal advice on the implications of the Environment Act 2021 for investigating complaints of smoke nuisance and consider how it should investigate such complaints in light of that advice. The Council should then inform Mr X of how it can investigate any further complaints of smoke nuisance from him. The Council should take this action within three months of my final decision.

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Final decision

25. Fault causing injustice.

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Investigator's decision on behalf of the Ombudsman