Summary: The Ombudsman will not investigate this complaint about the way the Council responded to the complainant’s report of emissions from his neighbour’s boiler. This is because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr X, complains that the Council will not force his neighbour to modify their boiler outlet.

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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. (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 considered photographs of the vapour from the boiler and comments Mr X made in response to a draft of this decision.

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What I found

4. A council must take action if someone’s actions cause a statutory nuisance. A nuisance can be caused by smoke. If an officer witnesses something which they believe constitutes a statutory nuisance the Council will serve an abatement notice which explains what the person must do to stop the nuisance. If the person does not comply the Council can take them to the magistrates’ court. The court then decides whether there has been a statutory nuisance and can issue a fine. The person can appeal to the magistrates if they do not think the Council should have issued them with an abatement notice.
5. The Ombudsman cannot decide if an action is causing a statutory nuisance.
6. A private individual can take action in the magistrates’ court if they think someone is causing a statutory nuisance. The appellant would have to satisfy the court that a statutory nuisance was being caused.

What happened

7. Mr X contacted the Council to report fumes from his neighbour’s boiler. He said he is hit by fumes when he leaves his home. In response an officer visited and asked the neighbour to turn on the boiler. It was a cold day and the boiler was working hard and emitting vapour. The officer stood outside Mr X’s front door and found that, while the area was at times affected by the discharge, it did not amount to a statutory nuisance.
8. A second officer visited and decided that the discharge did not satisfy the threshold of being a statutory nuisance. The officer noted that the discharge does not enter Mr X’s home and it quickly dissipates in other directions. One of the officer’s videoed the vapour. Mr X says this proves there is a problem.
9. The Council spoke to the neighbour to ask if they would be willing to make changes to the outlet but it stressed to Mr X that it cannot force the neighbour to take action.
10. Mr X is dissatisfied with the Council’s response. He wants the Council to force the neighbour to modify the outlet. Mr X says the discharge is affecting his eyes and makes gardening unpleasant because he is hit by the emissions. He has referred to government guidance for boiler installers and says there is not the recommended distance between the boiler outley and his wall.

Assessment

11. I will not start an investigation because there is insufficient evidence of fault by the Council. The Council responded appropriately by inspecting the discharge on two occasions and by speaking to the neighbour. However, it decided it could not force the neighbour to take action because both officers decided the discharge did not amount to a statutory nuisance. Mr X disagrees with this assessment but there is no suggestion of fault in the way the officers reached this view and I cannot decide whether there was a statutory nuisance. The fact that an officer filmed the discharge does not mean there was a statutory nuisance.
12. Mr X has referred to guidance about minimum distances between the pipe and adjacent wall. However, this is guidance for boiler engineers, not the Council. And, regardless of the distance, the officers decided there was no statutory nuisance.
13. If Mr X remains of the view that the discharge does cause a statutory nuisance he could take action, in the magistrates’ court, against his neighbour. Mr X would need to satisfy the court that the emissions meet the threshold to be regarded as a statutory nuisance. I do not know if any legal action taken by Mr X would be successful.

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Final decision

14. I will not start an investigation because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman