Summary: Mr B complained that the Council failed to take action in relation to his neighbour’s wood burner which was emitting smoke and fumes at first-floor level affecting his enjoyment of his property and garden. The Ombudsman found the Council properly investigated Mr B’s concerns. It failed to keep Mr B properly informed but this did not cause him a significant injustice.

The complaint

1. Mr B complains that the Council has failed to take action in relation to a wood burner installed in his neighbour’s property which is emitting smoke and fumes at first-floor level affecting his enjoyment of his property and garden.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’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 all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. Mr B 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

Legal and administrative background

Statutory nuisance

6. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. Noise and fumes

can be statutory nuisances. To be a statutory nuisance, they 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.

Smoke control areas

7. The EPA only applies to smoke emitted from a domestic chimney outside a smoke control area. Within a smoke control area, it is an offence to create smoke from a chimney unless it is from an exempted appliance and/or authorised smokeless fuel.
8. The Clean Air Act 1993 controls emissions from domestic and industrial smoke and gives councils the power to create smoke control areas.
9. Section 20 of the Clean Act 1993 makes it an offence to emit smoke from a chimney unless the emission arises from an authorised fuel or fuel permitted to be burnt on an exempt appliance.

DEFRA exempt appliances

10. The installation of an exempt appliance, particularly a flue outlet, must be in accordance with building regulations. Building regulations require that such appliances are installed by a competent person registered with HETAS (the solid fuel safety and standards organisation which manages the self-certification scheme) or, if not, a building regulation application must be submitted.

Key facts

11. Mr B lives in a designated smoke control area. In September 2020 he complained to the Council that his neighbour, Mr X, had installed a wood burner in his conservatory and, because the flue was at first floor window level, smoke and fumes were entering his home and garden rather than being dispersed as they would have been if the flue was above the ridge-line height. He says he was forced to close his windows and could not enjoy his garden. He was also concerned about the health implications of inhaling the smoke.
12. On 24 September 2020 the Council’s environmental health officer (EHO) wrote to Mr X requesting copies of the installation documentation to confirm the appliance was “an exempt appliance” meaning it was compliant for use within a smoke control area. She also referred Mr B’s concerns to the Building Control team and to HETAS which offered to complete an assessment to check the contractors’ work.
13. The EHO wrote to Mr B informing him of the actions she had taken and enclosing diary sheets for him to keep a record of dates, times and duration of the smoke and how it was affecting him.
14. On 22 October 2020 Mr B returned the completed diary sheets. The EHO said she was awaiting a response from Building Control on their investigation regarding the certification of the wood burner. She said the next part of the investigation would involve visiting the area at a time when the wood burner was likely to be in use to witness the smoke emissions. She also arranged to visit Mr X to review the fuel in use. She explained Environmental Health’s remit only extended to the type of fuel being used and whether this was compliant for the appliance and for use within a smoke control area.
15. HETAS issued a building regulation compliance certificate once they were satisfied the installation met their requirements.
16. On 3 November 2020 the EHO informed Mr B that she would be visiting Mr X.
17. The EHO visited Mr X on 4 November 2020 and witnessed him starting up the wood burner. She found a small amount of smoke was emitted. She also reviewed the fuel being used by Mr X which was kiln dried hardwood logs stored in a dry environment. Mr X provided receipts for the purchase of the fuel for the previous two years.
18. Another resident had also complained about the smoke and the EHO had arranged to visit them on 27 November 2020 but they subsequently cancelled the visit.
19. On 3 February 2021 Mr B wrote to the EHO saying his house was full of smoke and he had heard nothing from the Council since 3 November 2020.
20. The EHO responded the same day advising Mr B on the outcome of the visit to Mr X. She explained the appliance was permitted for use within a smoke control area and suitable fuel was being used. So, there was no breach of the Clean Air Act. Accordingly, no action could be taken regarding the smoke.
21. Mr B complained. The Council did not uphold his complaint and, at stage 3 of its complaints procedure, referred Mr B to the Ombudsman if he remained dissatisfied.

Analysis

22. I am satisfied the Council properly investigated Mr B’s concerns. The matter was considered by the planning department, environmental health team and the building control team.
23. The planning department confirmed that a flue can be installed under permitted development under class G, part one, schedule 2 of the Town & Country Planning (General Permitted Development) (England) Order 2015 provided it does not exceed the highest part of the main roof by 1 metre. So, the flue was not subject to planning control.
24. The Council’s building control team checked that the wood burner was on the list of DEFRA exempt appliances and referred Mr B’s concerns about the height of the flue to HETAS.
25. HETAS confirmed the wood burner and flue had been installed in accordance with building regulations and issued a certificate of compliance. In these circumstances, building control could take no action regarding the location of the wood burner or the position of the flue. It is for HETAS to decide whether installation was compliant with building regulations.
26. As the property is in a smoke control area, statutory nuisance legislation does not apply provided the appliance generating the smoke is acceptable for use in a smoke control area and the correct fuel is being used. So, the environmental health team could not consider whether the smoke amounted to a statutory nuisance. They could only consider whether the fuel was permitted for use in a smoke control area. The EHO visited Mr X to check the type of fuel being used and was satisfied it was suitable for use in a smoke control area. As there was no evidence of a breach of the Clean Air Act, there were no grounds for the Council to take any action regarding the smoke.
27. For the reasons set out above, the Council has no power to take any action to prevent Mr X using the wood burner or to require him to change the height or position of the flue. I do not consider the Council could have done anything more to investigate Mr B’s concerns.
28. The Council should have informed Mr B of the outcome of the investigation sooner. It did not do so until he requested an update on 3 February 2020. However, it was open to Mr B to contact the EHO sooner to request this information. So, I do not intend to pursue this issue further.

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Final decision

29. I do not uphold Mr B’s complaint.
30. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman