Torridge District Council (19 007 225)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 07 Feb 2020

The Ombudsman's final decision:

Summary: Miss X complained about the Council’s advice when she tried to make a nuisance complaint. There was some fault in the Council’s initial advice, but this did not cause a significant injustice. I have found no fault in the Council’s subsequent advice or investigation.

The complaint

  1. Miss X complained about the advice the Council provided when she tried to make a nuisance complaint. She said the Council’s advice was wrong and tried to put her off making a complaint.
  2. Miss X has had 18 months of misery from her neighbours. The strong cigarette smoke has caused medical problems for her and her dog. She has also had to sleep downstairs on the sofa, causing back problems, because the smoke gets into her bedroom.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of the investigation I have considered the following:
    • Miss X’s complaint and supporting information.
    • the Council’s responses to Miss X’s complaint.
    • the Council’s response to my enquiries.
    • The Environmental Protection Act 1990 (Section 79).
    • The Council’s procedures for investigating nuisance complaints.
  1. I wrote to Miss X and the Council with a draft of this decision and considered their comments before a final decision was made.

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What I found

  1. Under section 79 of the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance. The potential nuisance must unreasonably and substantially interfere with the use or enjoyment of a home or other premises or injure health or be likely to injure health. Statutory nuisances can be caused by issues such as:
    • Smoke;
    • Dust, steam, smell or other effluvia arising on industrial, trade or business premises;
    • Artificial light;
    • Noise
  2. All smoke from residential, business and industrial premises is covered by statutory nuisance laws. Generally, an environmental health officer will need to witness the statutory nuisance. When assessing whether smoke is a statutory nuisance, council officers can look at the amount of smoke, the intensity, how often it happens, for how long it happens, and how unreasonable the activity is. Government guidance confirms smoke from an everyday activity like cooking is unlikely to be a statutory nuisance. If an officer decides a statutory nuisance is taking place, they must issue an Abatement Notice.
  3. Under the Council’s procedure, the complainant is asked to complete an online complaint form (or one can be sent by post) and they will normally be asked to complete a diary of events. On receiving the complaint form, an officer will normally contact the occupier of the property complained of to make them aware and give them an opportunity to put things right if necessary. The Council can only take action if the nuisance can be witnessed. The Council normally undertakes a maximum of three assessment visits in each case. If evidence of a statutory nuisance is gathered, the Council may serve an Abatement Notice. If, in the officer’s opinion, the nuisance complained of does not amount to a statutory nuisance the investigation will normally end.
  4. A member of the public may bring a claim of statutory nuisance in the magistrates’ courts (EPA, section 82).

What happened

  1. Miss X first noticed cigarette smoke entering her property from her neighbour’s in about December 2017.
  2. Over the coming months Miss X was aware of the smoke more. She emailed the Council for advice on 17 April 2018. She said her neighbour smokes in their house, and it is coming into one of her bedrooms. Miss X stressed the cigarette smoke was ‘really strong’ and asked the Council if it could do anything, as she knew it is not illegal to smoke in your own home. Miss X said she looked but cannot see where smoke is coming in.
  3. The Council responded to Miss X the same day. It said sorry she was having problems with odours in her home, but the Council cannot investigate as it doesn’t come under statutory nuisance legislation.
  4. Miss X continued to suffer with cigarette smoke coming into her property, so she emailed the Council again on 3 July 2018. She said the issue had increased since her first email. She explained smoke was coming in through open windows and the walls, and it was not a complaint about odour, contrary to the Council’s earlier reply. Miss X said her neighbours were smoking strong cigarettes in the yard in front of her house and questioned why this was not a statutory nuisance.
  5. The Council replied on 4 July 2018. It said it can investigate smoke drift under statutory nuisance but there would need to be a substantial amount of visual smoke to prove the nuisance. The Council again confirmed it could not investigate odour from a domestic property. The Council asked Miss X to complete a nuisance complaint form so an officer could assess the smoke.
  6. Miss X felt put off by the Council’s email. She thought the Council’s insistence on needing to see a substantial amount of visual smoke was designed to discourage her from complaining, so she did not complete a nuisance complaint form then.
  7. Miss X did complete a nuisance complaint form on 12 May 2019, because the smoke problems continued and there were also issues with noise and anti-social behaviour.
  8. Miss X said in her complaint form that her neighbour is a heavy smoker, who left their loft hatch open between January 2018 and April 2018. This caused cigarette smoke to fill her house. Miss X also raised issues about her neighbour drinking, playing loud music and being noisy in the evening. She said her neighbour’s go in and out of the front door throughout the night and into the early hours. She said the music usually happens at weekends, in the evening, and the drinking occurs every night. Miss X said she could not sleep upstairs because of smoke coming into the bedroom windows. She said she had experienced problems with her breathing since the nuisance started, despite being healthy and active. She also said her dog was diagnosed with cancer; despite a clean bill of health shortly before the nuisance started. Miss X was concerned about the link between these health issues and cigarette smoke.
  9. The Council emailed Miss X on 14 May 2019 in response to her nuisance complaint form. It said if she wanted to continue the complaint, she would need to complete a diary sheet to record when the nuisance occurred and then return this to the Council. The Council asked for Miss X’s agreement to send a letter to the person causing the nuisance.
  10. Miss X replied the same day. She agreed for the Council to send a letter to her neighbour.
  11. The Council wrote to Miss X on 16 May 2019 enclosing diary sheets to complete and explaining why it needed this information.
  12. The Council’s records show it contacted Miss X’s neighbour to discuss the nuisance complaint. The neighbour explained there were tensions with Miss X since moving into the property. They said Miss X had complained about their decking and work carried out on the house, as well as her smoking and playing the radio in the garden. The Council explained the nuisance process to the neighbour, and they agreed to be more mindful.
  13. The Council’s records also show it closed the complaint because Miss X did not return her diary sheets.
  14. Miss X made a formal complaint to the Council on 17 May 2019. She said:
    • The Council wrongly told her she could not complain about smoke coming into her property when she first contacted the Council in April 2017, because it was not a statutory nuisance.
    • The Council later said smoke could be investigated but it needed a substantial amount of evidence.
    • The Council put her off complaining through misinformation and negativity.
  15. The Council responded to Miss X complaint on 18 June 2019. It clarified nuisance laws about odour, which it said it cannot look into. However, on smoke, the Council said it can act where smoke is emitted from premises so as to be prejudicial to health or a nuisance.
  16. The Council said smoke must be visible to distinguish it from an odour nuisance. Without being able to prove the issue is one of smoke, any enforcement action would fail. However, smoking is legal and smoke-free rules don’t apply to residential property. The Council would need to show the smoking is unreasonable or excessive. This is not straight forward.
  17. The Council did not uphold the complaint but hoped it had clarified the advice it gave and the legal background.
  18. Miss X was unhappy with the Council’s response. She took her complaint to stage two of the complaints process on 26 June 2019. She said:
    • The Council has a duty to take ‘reasonably practicable steps’ to look into complaints about smoke, which is prejudicial to health or a nuisance, but the only advice it first gave was for Miss X to contact a builder.
    • She never asked for help with odour or smell, but cigarette smoke. The Council did not tell her it has a statutory duty to look into complaints about cigarette smoke.
    • If the Council has no legal power to act (as it told her), why did one of its officer’s act so quickly to contact her neighbour after she sent the nuisance complaint form.
    • Because of the Council’s prompt action in sending a letter after she put in her complaint form, the problem has stopped. She is frustrated she did not get this response when she first contacted the Council in April 2018.
  19. The Council responded on 24 July 2019. It said the previous advice about cigarette smoke and the Council’s responsibilities still applied. The prompt response was due to the multiple issues Miss X raised in her nuisance complaint form: loud music, noise and cigarette smoke. The Council said it was pleased to hear Miss X’s neighbour acted positively to the visit from the environmental health officer.
  20. Miss X brought her complaint to the Ombudsman on 31 July 2019 because she believed the advice from the Council was wrong.

Response to my enquiries

  1. The Council’s Environmental Health Manager told me:
    • The first contact from Miss X was received in April 2018. The Council’s reading of the first complaint was that it related to the smell of smoke, described as ‘really strong’. Miss X could not make out how it was getting into her property, so the Council considered it was not visible. The Council did not consider the neighbour’s actions as unreasonable or excessive. It told Miss X it has no power over odour from domestic properties. The Council believes this advice was correct.
    • In July, Miss X said her complaint was about smoke not odour. This was partly due to her neighbour smoking outside and coming in through open windows, as well as some smoke coming through the walls at an unknown point. The Council confirmed it had no power over domestic odour but if the smoke was visible it could fall under nuisance legislation. The Council directed Miss X to the complaints form. She did not complete the form, so the complaint was closed.
    • The Council received a further complaint from Miss X in May 2019 about music, domestic noise and cigarette smoke. This suggested visible smoke and there was reference to smoking on the decking coming through open windows. The Council wrote to Miss X’s neighbour, with her agreement. It asked Miss X to complete diary forms and send them to the Council. Miss X did not send diary forms so the Council closed the complaint.

Analysis

  1. I understand the Council’s reasoning behind its first response to Miss X, based on what it told me in response to my enquiries. However, it did not fully express this to Miss X when she asked for advice, or in its complaint responses. And, while technically the Council’s advice about odour was correct, it was not the advice Miss X asked for. The Council did not fully explain the difference between smoke and odour at this stage and we would expect it to have done so. That was fault. I do not consider this caused a significant injustice to Miss X because the Council did clarify the position, and provide better advice, in its next response in July 2018.
  2. I do not find any fault with the Council’s second response (dated 4 July 2018). It sets out the legal position, and the distinction between smoke and odour. This is what advice the Council should have given initially.
  3. Miss X feels the Council tried to put her off sending a nuisance complaint form, by saying it needed substantial evidence. On balance I consider the Council was telling Miss X of the legal and evidential position. It told her about the difficulty proving cigarette smoke was a statutory nuisance. We would expect the Council to be open and up front and I do not consider that was fault.
  4. Miss X is unhappy the Council only acted after it received her nuisance complaint form in May 2019 but did not do so earlier. Again, I do not find fault with the Council’s response here. Its procedure for looking into nuisance complaints is that a form must be submitted. Once Miss X sent the form the Council started to investigate, including contacting the neighbour. The Council told Miss X it would investigate if she sent a nuisance complaint form in July 2018. Miss X felt put off from doing so but I have not found fault with the Council’s advice on that occasion.

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Final decision

  1. I have completed my investigation. There was some fault in the Council’s initial nuisance advice, but this did not cause a significant injustice. I have found no fault in the Council’s subsequent nuisance advice or investigation.

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Parts of the complaint that I did not investigate

  1. Miss X raised concerns about health problems which she, and her dog, suffered after the smoke nuisance started. Miss X told me she has medical evidence to show a link between the smoke and the health problems. The Ombudsman does not have the expertise to offer judgement on this point and Miss X can take legal action if she wishes to pursue this.

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Investigator's decision on behalf of the Ombudsman

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