Nuisance from dust or smoke

This fact sheet is aimed primarily at people who have concerns that the council is not taking action about the nuisance from dust or smoke they are experiencing and may be considering making a complaint to the Ombudsman.

I am suffering from dust or smoke coming from nearby premises or sites and I am unhappy that the council has done nothing about this. Can the Ombudsman help me? 

Yes, in some circumstances. We cannot overrule the council’s decision on whether or not to take action, as it isn’t our role to say whether the dust or smoke that you are complaining about is a nuisance in law or whether action must be taken to reduce it. But, if you believe that the council did something wrong in the way it investigated your complaints about this and can also show that it caused you problems, then you can complain to us and we can look into it. 

If you are suffering from nuisance from dust or smoke, you need to let the council know as soon as possible giving details of where it is coming from and the dates and length of time that it occurred. The council cannot immediately intervene to stop it, as it needs to investigate to establish the nature of the problem.

How do I complain? 

You should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.

Then, if you are unhappy with the outcome, or the council is taking too long to look into the matter – we think 12 weeks is reasonable – you can complain to us. 

You should normally make your complaint to us within 12 months of realising that the council has done something wrong.

To complain to the Ombudsman phone our helpline on 0300 061 0614 (8.30am to 5.00pm, Mondays to Fridays). You will be able to discuss your complaint with one of our advisers. You can text us on 0762 481 1595.

You can complete an online complaint form.

If you can consider my complaint what will the Ombudsman look for? 

Local authorities have a duty to take “reasonably practicable steps” to investigate complaints about various nuisances, including dust arising from industrial or business premises, or smoke from premises, which are prejudicial to health or a nuisance. 

They have no specific powers to deal with domestic bonfires, although if frequent and smoky they may cause serious nuisance. 

Dust and smoke cannot be easily measured and it is for the council to assess if they amount to a ‘statutory nuisance’ in law and, if so, to take action such as issuing an abatement notice. That process can take some time, particularly if the timing of the nuisance is unpredictable. 

Some people are troubled by unpleasant dust or smoke from time to time, especially those living in rural farming areas or near a building site, and occasional incidents would not normally be regarded as a statutory nuisance.

We consider whether the council has done something wrong in the way it has investigated your complaint and, if so, what effect this had and what problems this led to for you. For example, we assess if the fault is likely to have made a difference to the problems you experienced. Some faults we might find are that the council:

  • did not investigate the complaint properly and establish whether there was a problem from the dust or smoke, or established there was a significant problem but failed to take action on it
  • took too long to investigate the problem or failed to take enforcement action when informal attempts to resolve the problem failed
  • did not take into account the relevant law, policy or guidance
  • did not explain the outcome of its investigation to you, or
  • made a decision based on inaccurate, incomplete or irrelevant evidence or failed to consider evidence that was available.

What happens if the Ombudsman finds that the council was at fault? 

It depends on the fault and what the consequences are for you. We cannot force the council to take action to prevent the dust or smoke. But, if we find that you still suffer from them because of the council’s fault or suffered for longer than was necessary, we may ask the council to take steps to address the problem. If it has established that there is a serious problem but has failed to take action, we may recommend that the council re-evaluate the evidence and consider issuing an abatement notice. 

If the council has not investigated the complaint properly or has failed to consider evidence that it should have, we may suggest that the council uses its own officers or outside specialists as independent witnesses to evaluate the dust or smoke. In exceptional cases, where it is not possible to reduce the harm caused, or if the nuisance has now stopped, but we find that you suffered from it for longer than necessary, we may ask the council to pay you compensation. We may also ask for compensation if you have had a lot of time, trouble or expense in pursuing your complaint.

Where we find fault with the council’s procedures we will often recommend that the council introduces changes, so that the same problem does not occur again in the future. 

Examples of some complaints we have considered

Mr H complained, amongst other things, that his local council failed to respond adequately to his complaints of nuisance caused by excessive levels of dust from a mine close to his home. We recognised that from time to time the dust levels had caused real anxiety for local residents. The council had monitored the problem over a period of time, including carrying out a survey of the dust levels and sending a questionnaire asking residents to describe how they felt about the dust. At the end of this monitoring exercise the council did not judge that a statutory nuisance existed. There are no national guidelines on when dust levels (outside a work environment) become unacceptable and amount to a statutory nuisance and we could not conclude that the council had acted wrongly or been at fault.

Other sources of information

If you wish, you can consider taking your own action about the nuisance by complaining directly to the magistrates’ court, under Section 82 of the Environmental Protection Act. But before doing so we suggest that you check the following information sources and take some legal advice.

Supplementary Planning Guidance on the control of dust and emissions from construction and demolition, by Mayor of London July 2014 – www.london.gov.uk/what-we-do/planning/implementing-london-plan/supplementary-planning-guidance/control-dust-and

Your local council’s website may have information about statutory nuisance and enforcement in the section on Environmental Health or Environmental Services.

Statutory nuisance – Friends of the Earth information leaflet at www.foe.co.uk/resource/guides/5_2_statutory_nuisance.pdf.

Information about environmental protection and statutory nuisance from the Chartered Institute of Environmental Health is at www.cieh.org/policy/environmental_protection.html

Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.

The Local Government and Social Care Ombudsman provides a free, independent and impartial service. We consider complaints about the administrative actions of councils and some other authorities. We cannot question what a council has done simply because someone does not agree with it. If we find something has gone wrong, such as poor service, service failure, delay or bad advice and that a person has suffered as a result the Ombudsman aims to get it put right by recommending a suitable remedy.

January 2016 

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