Summary: We will not investigate this complaint about smoke and cooking smells from a market food stall. This is because there is insufficient evidence of fault and injustice.

The complaint

1. The complainant, whom I refer to as Mr X, complains about smoke and cooking smells from a street market stall. Mr X wants the Council to stop the stall from trading.

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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’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe:

• it is unlikely we would find fault, or
• the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I read the complaint and the Council’s responses. I looked at photographs of the stall provided by Mr X. I invited Mr X to comment on a draft of this decision.

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What I found

Statutory nuisance

4. Councils have a duty to investigate potential statutory nuisance. Smell or smoke from a business premise can be a statutory nuisance. A statutory nuisance must unreasonably and substantially interfere with use or enjoyment of a home or be something likely to injure health. It is for qualified officers to decide if there is a statutory nuisance. They must consider issues such as duration, frequency, motive and the impact on the average person.
5. If a council finds there is a statutory nuisance it can serve an Abatement Notice. The recipient can appeal against the notice to the court. The Council must be confident that its assessment that there is a nuisance is strong enough to be upheld in court.

What happened

6. Mr X complained to the Council about smoke and cooking smells from a street market stall. He says the smoke is a health risk particularly for people with respiratory illnesses.
7. An officer visited the stall and witnessed the cooking operation. The Council found out that nobody else has complained about the stall. The Council noted that Mr X lives more than a mile from the market but it invited him to say if he works near to the market. The Council told Mr X that smells are noticeable when people walk past the stall but people can walk away if bothered by the smell or the smoke. The Council said the stall only operates for one day a week and is an appropriate business for the open air. It said it had no power to take action because the stall is outside and people can walk away. The Council said the stall does not create a nuisance and the gas cylinders are used responsibly.
8. I have not seen any evidence that Mr X told the Council that he suffers from a respiratory illness or that he works near to the stall.
9. Mr X is dissatisfied with the Council’s response. He says the stall is in a pedestrianised area and the smoke stops him from being able to sit on a bench. He says the smoke is bad for people with breathing issues.

Assessment

10. I will not start an investigation because there is insufficient evidence of fault by the Council. The Council acted appropriately by visiting the stall and finding out whether other people had complained. It explained why it was satisfied there is not a nuisance. The Council has a duty to investigate potential nuisance but it is up to the Council to decide whether there is a nuisance and whether it needs to take action. We do not act as an appeal body and we cannot decide if an activity is a statutory nuisance.
11. I also will not start an investigation because there is insufficient evidence of injustice. There is nothing to suggest Mr X lives or works near the market and he can avoid the one day a week the stall is open. Mr X has not said he suffers from a respiratory illness but, if he does, the law says councils must assess whether there is a statutory nuisance by considering the impact on an average person. In addition, nobody else has complained about the stall which suggests that people with breathing difficulties are not being affected by the stall.

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Final decision

12. I will not start an investigation because there is insufficient evidence of fault and injustice.

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Investigator's decision on behalf of the Ombudsman