Summary: Mr X complained about how the Council acted on his reports of smoke from his neighbour’s property. The Council was not at fault in how it investigated Mr X’s concerns about a new chimney. Any fault in how the Council acted in response to a previous chimney did not cause Mr X a significant personal injustice so I did not investigate that issue.

The complaint

1. Mr X complained about how the Council acted on his reports of smoke from his neighbour’s property. He said this meant he was having to live with unreasonable amounts of smoke, which meant he could not use his garden or open his windows. He said the smoke was affecting his health.

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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. 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)
3. We must 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 must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s response to Mr X’s complaint; and
• the relevant law and guidance.
6. Mr X and the organisation 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

Relevant law and guidance

Statutory nuisances

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
8. Typical things which may be a statutory nuisance include smoke from premises.
9. 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.
10. 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, or undertake site visits.
11. 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.

Smoke control areas

12. Many parts of the UK are smoke control areas where there’s a limit on how much smoke you can release from a chimney and you can only burn authorised fuel, unless you use an ‘exempt appliance’.

Abatement notices

13. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice.
14. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
15. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Section 82 of the Environmental Protection Act 1990

16. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.

What happened

17. In November 2021, the Council issued an abatement notice on Mr X’s neighbour due to smoke issuing from the property through a low-lying flue. The smoke was coming from a solid fuel burning appliance and was of such a level that the Council decided it was a statutory nuisance. The notice required the neighbour not to cause a nuisance through the use of any fuel-burning appliance.
18. Mr X says in April 2022, the Council invited the neighbour to an interview due to non-compliance with the abatement notice. He says the neighbour did not attend and the Council took no further action. The neighbour later demolished the flue.
19. In late 2022, Mr X complained about smoke coming from a different flue. The Council began a new investigation to decide if the smoke was a statutory nuisance. The Council asked Mr X to fill out diary sheets noting when the smoke occurred. It noted the smoke typically happened from early evening onwards and lasted between 5 to 6 hours.
20. The Council carried out seven site visits over a month-long period, attending at different times of the evening. Officers observed the smoke from Mr X’s driveway near his side gate and the street. They also spoke to Mr X several times and offered to observe the smoke from within his property. It found:
• there was light smoke coming from the neighbour’s property;
• the amount of smoke was not above that seen coming from other properties in Mr X’s area; and
• Mr X did not live in a smoke control area.
21. The Council decided the smoke was not a statutory nuisance and closed the case.
22. Mr X complained to the Council and then to the Ombudsman. His complaint included:
• he was unhappy the Council had not taken action when the neighbour did not attend the interview in April 2022;
• he felt the new flue was a continuation of the nuisance caused by the previous flue and so the Council should have prosecuted the neighbour for breach of the abatement notice;
• he was unhappy the Council had not allowed him to use its out of hours service to report the smoke. He felt had it done so, the officers could have visited when the smoke was at its worst. Instead, he said they visited at random times; and
• when the officer’s visited, they stood where the smoke was reduced, it was worse in another area.

Findings

23. I have not investigated Mr X’s complaint that the Council failed to act after his neighbour did not attend an interview in April 2022. This is because by the end of 2022, the neighbour had demolished the original flue so the nuisance from it has ceased. As such, any fault did not cause Mr X significant personal injustice.
24. The Ombudsman cannot question a council's decision if there is no fault in how it came to that decision. When investigating reports of statutory nuisance, the Council has discretion to decide how to investigate and must only take ‘reasonably practicable’ steps. Once Mr X made reports of excessive smoke from the new flue, the Council began a new investigation. This was because it needed to determine if the smoke was a statutory nuisance before deciding if it breached the abatement notice. This was correct.
25. The Council gave Mr X diary sheets, visited his property to observe the smoke from outside several times and offered to assess the impact from within his property. It also observed smoke coming from other properties in the area. Mr X feels the investigation was inadequate because the officers visited at ‘random’ times and did not observe the smoke from the area where it was at its worst.
26. The Council's visits were at various times in the evening, when Mr X’s diary sheets noted the smoke was at its worst, so I am satisfied it attended at suitable times. It was the officer’s professional judgement as to where to stand to witness the smoke. They stood near Mr X’s side gate and also offered to observe any smoke from within his property. The Council took appropriate steps to investigate Mr X’s reports of nuisance smoke and none of the evidence it reviewed persuaded its officers the smoke was excessive enough to constitute a statutory nuisance. The Council was not at fault when made its decision so I cannot question the outcome.

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Final decision

27. I have completed my investigation. I have not found evidence of fault by the Council in how it investigated Mr X’s recent concerns. Any fault in the Council's previous investigation did not cause Mr X a significant personal injustice so I did not investigate that issue.

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Investigator's decision on behalf of the Ombudsman