Summary: Mr C complained the Council failed to investigate properly and take appropriate action in response to his reports of smoke nuisance. Mr C says he suffered from unacceptable levels of smoke and fumes which affected the amenity of his property for longer than necessary. The Ombudsman has found no evidence of fault.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to investigate properly and take appropriate action in response to his reports of smoke nuisance from his neighbour’s flue from 2015. Mr C says because of the Council’s fault, he suffered from unacceptable levels of smoke and fumes which affected the amenity of his property for longer than necessary.

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What I have investigated

2. The complainant, whom I shall refer to as Mr C, complains the Council failed to investigate properly and take appropriate action in response to his reports of smoke nuisance from his neighbour’s flue from September 2018 to date. Mr C says because of the Council’s fault, he suffered from unacceptable levels of smoke and fumes which affected the amenity of his property for longer than necessary.
3. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details. I have explained my draft decision to Mr C and the Council and considered any comments received before reaching my final decision.

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What I found

Background and legislation

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. Section 79 of the EPA says smoke emitted from premises to be prejudicial to health or a nuisance is one of the matters which constitute “statutory nuisances” for the purposes of this part of the Act. But the section goes on to say this does not apply to smoke emitted from a chimney of a private dwelling within a smoke control area.
10. Mr C lives in a smoke control zone. People living in the smoke control zone must comply with the Clean Air Act 1993 (CAA). In a smoke control area a person can only burn fuel on the list of authorised fuels or a ‘smokeless’ fuel or use an exempt appliance which is exempted to burn specific non-authorised fuels. An authorised fuel can be used regardless of whether the appliance itself is exempted.
11. Failure to comply with the legal requirements is an offence. Contravention of s.20(i) of the CAA, which relates to burning unauthorised fuel, is a criminal offence. That means any evidence gathered by a council during an investigation must reach a much higher standard and be ‘beyond reasonable doubt’. A council must be able to show that unauthorised fuel has been used at a private dwelling and the case is in the public interest. If those criteria are not met, a council will not pursue the case. A council can enter a dwelling under the CAA to see what fuel is being used but must give the owner seven days notice of the visit.
12. The Heating Equipment and Testing Approval Scheme (HETAS) is a competent persons scheme set up by the government as an alternative to approval by the Council. It allows self-certification of compliance with Buildings Regulations by a HETAS scheme member including the installation of solid fuel burning appliances.
13. The Council received reports about smoke from the chimney of Mr C’s neighbour in 2015. During 2015 to 2016 the Council completed tests at the neighbour’s property, made enquiries about the installation of the appliance and completed observations from Mr C’s property. The Council considered it had taken reasonable steps to investigate the reports and decided no further action was required. The Council did not receive further reports until 2018.
14. Mr C and his neighbour live in semi-detached properties and the party wall has back to back fireplaces.

Key events from September 2018

15. Mr C contacted the Council towards the end of September 2018 about smoke from his neighbour’s chimney.
16. The Council responded in early October to say it could not add to the previous investigations and proposed no further action. The Council provided details of Mr C’s private right of action.
17. Mr C provided further information to the Council in November. The Council agreed to re-visit Mr C’s neighbour. The Council has provided photographs from its visit. The photographs include the appliance, fuel at the property and a letter to Mr C from his neighbours from March 2015. The letter related to an inspection by the installer of the appliance from earlier that month which included a smoke test and pressure test with normal results and no identified leakage. The letter provided the contact details for the installer to confirm the results. The Council also photographed a letter from the installer which confirmed the details of the appliance which was a DEFRA approved stove and with an approved flue liner and other associated fittings. This letter also refers to a subsequent inspection by two HETAS registered fitters to check the installation, the liner and appliance with no fault being identified. The Council also photographed the HETAS certificate of compliance from the installation completed in December 2013.
18. Mr C contacted the Council for an update in November and provided photographs of soot deposits on his car. Mr C chased a reply from the Council later in November and said the situation had improved slightly but he had witnessed his neighbours removing fuel material from their property.
19. The Council responded to Mr C in December. This set out that the properties were in a smoke control area and the relevant restrictions. The Council confirmed the appliance was an exempted appliance for burning wood. The Council noted a different fuel was being used but this was an authorised fuel and could be used regardless of whether the appliance itself was exempted. The Council explained the relevant part of the EPA did not apply to smoke from a chimney within a smoke control area.
20. The Council explained Mr C’s reports about carbon monoxide fumes entering his property could potentially constitute a statutory nuisance. The Council had considered its previous investigations and a reading supplied by Mr C from his own carbon monoxide monitor. The Council contacted the manufacturer of the detector for advice on the reading which was not considered abnormal. The Council did not consider this would constitute a statutory nuisance and confirmed it did not propose further action.
21. Mr C contacted the Council as he was unhappy with the outcome of its response. Mr C doubted the installation was correct because of the smoke and fumes he experienced and suggested his neighbours were using an unauthorised fuel but removed this ahead of the Council’s visit. Mr C confirmed the nuisance had improved somewhat. Mr C accepted the carbon monoxide monitor did not show an abnormal reading but did suggest there was a leak from his neighbour’s flue into their property as it showed an increase when the appliance was being used. Mr C sought a visit to his property to witness the nuisance when it happened and an unannounced visit to his neighbour.
22. The Council responded to Mr C in December. The Council confirmed it had considered the certificate of the HETAS registered engineer from 2013, correspondence from the installer stating that two of its engineers had checked the installation in 2015 and its own investigations including smoke tests and observations which did not identify smoke entering his property. The Council had no evidence to consider the installation was faulty but Mr C could forward any evidence he had to its Building Control team. Mr C did not provide any evidence.
23. The Council also set out its consideration of whether there was a potential nuisance from carbon monoxide and noted there was no evidence of levels which could be considered prejudicial to health.
24. Mr C says new neighbours moved in next door in May 2019 and found the flue liner was not connected properly. Mr C says this problem has now been rectified and he has experienced no further issues. Mr C considers the Council should have identified this fault which would have resolved the issue much sooner.
25. The Council has provided details of its investigations into whether a statutory nuisance existed or was likely to exist and whether there was an offence under the CAA. The Council has provided its reasons why it did not consider there was a statutory nuisance or relevant offence. I see no evidence of fault in the process the Council has followed to reach its decisions. This included visiting Mr C’s neighbour, reviewing information from previous investigations and relevant information about the original installation and subsequent inspection by HETAS registered fitters. It was not fault for the Council to rely on this information.

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Final decision

26. I have completed my investigation as I have found no evidence of fault by the Council.

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Parts of the complaint that I did not investigate

27. I have not investigated events between 2015 and September 2018 as these are caught by the restriction outlined at paragraph 5 above as Mr C did not come to the Ombudsman until September 2019.

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Investigator's decision on behalf of the Ombudsman