Summary: the complainant Mr X complained the Council failed to use its legal powers to control nuisance caused by a neighbour using a firepit and barbeque creating noise, smoke, and odours. The Council says it took expert advice and liaised with the neighbour’s social landlord but did not find evidence of a statutory nuisance or actionable anti-social behaviour. We found the Council acted without fault.

The complaint

1. The complainant whom I shall refer to as Mr X complains the Council failed to properly investigate complaints of statutory nuisance caused by his neighbours. Mr X says the Council adopted what I call a blanket judgement that smoke and odours from barbeques cannot meet the criteria for a statutory nuisance, or the threshold for exercising anti-social behaviour powers.
2. Mr X says this means the Council has not properly considered the individual circumstances of the actions of his neighbours causing him distress. Mr X says because the Council has not issued formal notices, he cannot open windows or sit comfortably in his garden due to the barbeques regularly lit by his neighbour. Mr X says the exposure to particulates causes a risk to his health. Mr X wants the Council to exercise its discretion and investigate whether in all the circumstances the actions of his neighbours meet the threshold of a statutory nuisance or anti-social behaviour.

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The Ombudsman’s role and powers

3. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If 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

5. In considering this complaint I have;
• Contacted Mr X and read the information sent with his complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, guidance, and policy.
6. I shared a draft decision with Mr X and the Council and considered any comments received before reaching this my final decision.

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What I found

Statutory nuisance

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances.’
8. Examples of what may be a statutory nuisance include:
• smoke from premises
• smells from industry, trade, or business premises.

For the issue to count as a statutory nuisance, it 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.
3. There is no fixed point at which something becomes a statutory nuisance. Councils use qualified officers to gather evidence. Councils may ask the complainant to complete diary sheets, fit noise recording equipment, or undertake site visits.
4. Once the council has gathered evidence, the officer assesses the evidence. They consider the timing, duration, and intensity of the alleged nuisance. The officer uses their professional judgement to decide whether a statutory nuisance exists.

Anti-Social Behaviour

11. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms. Councils should decide on the facts which of their powers is most suitable for any given circumstances.
12. The Anti-social Behaviour, Crime and Policing Act 2014 introduced powers for councils or the Police tackling ASB including issuing:

• a community protection warning (CPW);
• a community protection notice (CPN);
• a civil injunction.

13. Councils and the Police can issue Community Protection Warnings and Notices (CPW and CPN). These aim to prevent anti-social behaviour which is having an adverse effect on the community's quality of life, which they decide is unreasonable. CPNs tell the recipient to stop and take reasonable steps to ensure they do not repeat the behaviour. Failure to comply is an offence and may result in a fine or a fixed penalty notice.
14. A council may issue a CPN while it considers if the behaviour is a statutory nuisance. Issue of a CPN does not affect the council’s duty to serve an abatement notice under Part 3 of the Environmental Protection Act 1990, where the circumstances meet the relevant test.

What happened

15. In July 2019 Mr X complained to the Council about his neighbours’ use of barbeques and a firepit in the next-door garden. Mr X also complained about the noise from frequent barbeque parties.
16. A social housing provider owns the neighbours’ home. Therefore, the Council advised Mr X to contact the social landlord to see if they could exercise controls through their tenancy conditions. Mr X copied the Council into his correspondence with the social landlord.
17. In August 2019 the social landlord confirmed it had opened an investigation into claims of nuisance and would deal with the matter under their tenancy agreement. In September 2019 the Council received copies of the diary sheets recording incidents completed by Mr X and presented to the social landlord. The Council also received details of what action the social landlord had taken to resolve the nuisance complaint.
18. The Council responded to reports to the out of hours service in September 2019 but because the music had stopped officers did not attend. Mr X’s local councillor asked the Council to consider fitting a noise recording machine.
19. In October 2019 Council Officers visited Mr X’s home. They discussed the neighbour’s use of a firepit and the noise from gatherings in the garden. The Council’s officers told Mr X they still needed to assess whether a statutory nuisance existed. They had not done so by now because the social landlord had taken up the nuisance with Mr X’s neighbour. The Council hoped this would resolve the problem. The Council says officers agreed with Mr X he should tell the Council if any further nuisance occurred.
20. The Council did not receive any further reports of disturbances until June 2020 when Mr X contacted the Council about his neighbour cooking on the barbeque again.
21. In responding to my enquiries, the Council says its view is that using occasional barbeques or fire pits for cooking is unlikely to meet the threshold of a statutory nuisance. The courts have ruled household living noises will not usually amount to a statutory nuisance. The Council’s advisers believe occasional cooking outdoors is similarly unlikely to be a statutory nuisance. Other councils similarly do not consider using barbeques a statutory nuisance. However, officers contacted other residents to see if they could provide evidence of any disturbances that it may class as a statutory nuisance. Their responses did not provide supporting evidence the Council could use for an abatement notice.
22. Between June 2020 and July 2021 Mr X reported to the social landlord and the Council at least seven incidents of what he believed to be nuisance for investigation. These included incidents when Mr X could not use his garden or open windows because of smoke, odour, or noise. The Council liaised with the social landlord which took the lead in responding to the concerns. As landlord it had controls it could use through the tenancy agreement. Mr X shared with the Council information about the incidents so it could decide if a statutory nuisance may have occurred and needed further investigation.
23. In its response to Mr X’s complaint the Council said having taken legal advice it considered it unlikely occasional use of a firepit, or barbeque would meet the threshold of a statutory nuisance. However, it had followed up that view by considering the evidence Mr X put forward to the social landlord including his diary sheets. In the Council officer’s view, the information did not show incidents likely to constitute a statutory nuisance. Therefore, in the officer’s professional judgement they did not have grounds on which to base an abatement notice.
24. In deciding if they could use their powers, officers considered the frequency and nature of the incidences and whether they could consider the behaviour reasonable or anti-social in nature. The Council says it considered the powers available to it. From the information presented by Mr X the Council decided the most effective powers would be the Council’s anti-social behaviour powers if the behaviour met the threshold for exercising those powers. The Council decided it did not.

Analysis – is there fault leading to injustice?

25. My role is to decide if the Council properly considered which powers it had to control the disturbances Mr X brought to its attention. I must then decide if the Council properly sought information on which to decide if the disturbance met the test for using those powers. My role is not to decide if a disturbance is a statutory nuisance, or something best controlled using anti-social behaviour powers.
26. I do not doubt Mr X found his neighbours’ behaviour intolerable and affected the use of his home and garden. Whether that behaviour was so significant that it met the threshold for statutory nuisance or anti-social behaviour is a judgement for the professional officers. I cannot simply replace the officers’ judgement with my own. To aid their exercise of that judgement the Council’s officers took expert advice. They also considered case law put forward by Mr X in support of his view the Council could and should serve an abatement notice.
27. It is not part of my role to distinguish between differing expert legal views or interpret case law. That is more properly within the remit of the courts. I have considered whether the Council acted properly in gathering evidence and reviewing it before deciding if a statutory nuisance existed or if Mr X had experienced anti-social behaviour. We consider it good practice for agencies with power to control nuisance and anti-social behaviour to liaise and to allow the agency with the most effective power to take the lead. The Council believed without evidence that met the threshold of a statutory nuisance or ant-social behaviour the social landlord had the most effective powers. Therefore, I find the Council acted without fault in considering whether the evidence Mr X produced for the social landlord showed any behaviour it could control using its enforcement powers.
28. Councils should avoid giving the impression they are adopting guidance on the likelihood of a barbeque constituting a statutory nuisance and prejudging individual cases. Councils are under a duty to investigate if a statutory nuisance exists. The Council should judge each case on its merits. That means being open to the possibility a barbeque may cross the threshold of statutory nuisance. So far, the Council has not found evidence of a statutory nuisance or anti-social behaviour. It should remain open to examining any further evidence brought by Mr X to see if its view of the frequency, duration and nature of the neighbour’s actions remains unchanged.

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Final decision

29. In completing my investigation, I find the Council acted without fault in considering the use of its statutory powers to control nuisance and anti-social behaviour.

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Investigator's decision on behalf of the Ombudsman