Summary: Mr D complains the Council has failed to properly investigate his concerns about a nearby chimney. The Ombudsman has found evidence of delay by the Council. The Council agreed to his recommendations and for this reason he has ended his investigation of this complaint.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council’s Environmental Health and Planning Services Teams have failed to properly investigate reports of nuisance and a breach of Building Regulations relating to a nearby chimney.
2. Mr D also refers to dissatisfaction with the Heating Equipment and Testing Approval Scheme (HETAS).

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What I have investigated

3. I am looking at events from 2018 onwards. I explain below why I am not considering earlier actions or other matters.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as HETAS. (Local Government Act 1974, sections 25 and 34(1))
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)
6. 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))
7. 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

8. I have considered the information provided by Mr D. I asked the Council questions and carefully examined its response and supporting files.

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What I found

What happened

9. On 1 March 2018 Mr D contacted the Council stating a property near him (Property A) was burning unauthorised fuel and the chimney breached Building Regulations because the flue was too short. On 5 March, a Building Control Officer (Building Officer) visited Mr D. He saw the chimney and noted in a subsequent email the Council would check ownership of Property A. At Mr D’s request an Environmental Health Officer (Health Officer) visited two days later in the evening to witness smoke. He said there was a strong smell of wood smoke. Also, that week the Council contacted the owner of Property A. A Building Officer visited him on 16 March. The Officer viewed the stove serving the chimney and asked the owner to confirm if it was approved and suitable for wood burning. The Building Officer also noted he would consult the Building Regulations.
10. In April, the Council continued contact with the owner of Property A. Building Control advised that queries or challenges about a chimney installation had to be made to HETAS (the competent persons scheme set out below). The Council exchanged emails with Mr D and HETAS in April. On 1 June, the Council advised Mr D the matter was with HETAS so it was closing the case pending a referral back to it.
11. On 15 June Mr D emailed the Council reiterating his concerns about the chimney. HETAS had closed his complaint. He asked if Building Control could assist. The Building Officer told Mr D the chimney and stove were certified as complying with Building Regulations by HETAS. Building Control would look into the matter and notify him when the investigation was complete. A Building Officer visited the property on 27 June. On 2 July, the Building Officer asked to meet Mr D as part of the investigation. He visited on 9 July and advised he would look at technical compliance when he was able and Mr D should call the Council when the chimney was in use and a Health Officer could visit to witness the smoke.
12. On 29 July Mr D asked the Council for an update. The Building Officer replied the Council could not prosecute HETAS but it could take action against the installer if “certain conditions” were met and this was a “sticking point”. At the end of the month Mr D contacted the Health Officer who advised the Council could not investigate the smoke as a statutory nuisance but could consider it under the Clean Air Act 1993.
13. On 12 September, the Council received a complaint from Mr D about its failure to take action. The Council replied on 8 October stating it had acted correctly. On 18 October Mr D emailed the Council to escalate his complaint. He said the Building Officer had promised in July to prosecute for a breach of the Building Regulations. On 24 October Mr D also emailed the Health Officer stating the smoke was still a problem. The Council confirmed internally that Environmental Health should look at the smoke issue and the Building Control Team was dealing with HETAS approval of the installation. The Health Officer then wrote to the owner of Property A asking what fuel was being used. The owner replied that he was using the correct fuel.
14. On 16 November Mr D emailed the Council about the smoke, he reiterated his points in another email a few days later. On 23 November, the Building Officer responded. He said there were two issues: suitability of fuel and construction of the chimney. He said the Council had to gather evidence to meet prosecution standards in a criminal case and it currently had insufficient evidence to ensure a conviction. The stove and chimney were certified as compliant by HETAS. Under Building Regulations compliance can be shown “by other means”. This meant the Council could not take action. The HETAS certificate had a legal weight and it was hard for the Council to prove the installation was a breach of Building Regulations. Mr D responded the same day calling the Building Officer a liar and stating the Council had not helped him.
15. On 28 November HETAS told Mr D it had investigated. If the property owner declined arbitration Mr D should go to the Council for assistance. Mr D forwarded this letter to the Council. On 13 December Mr D emailed the Council saying the smoke problem was ongoing. He sent a further email on 20 January 2019 adding to his formal complaint. On 29 January, the Building Officer emailed Mr D stating he had not promised to take enforcement action when he visited in 2018. Mr D replied the Building Officer was a liar.
16. On 23 February Mr D emailed the Council with photographs of the chimney and sent further emails that month about the smoke. On 25 February, the Council replied to Mr D’s formal complaint. It apologised for the delay in responding. It said there was no evidence of Property A using incorrect fuel. The Council could not continually monitor the property and Mr D had only retrospectively reported incidents which meant Health Officers were unable to visit and witness the smoke themselves. Without evidence of improper use by Property A the Council could not take formal action. HETAS covered the stove and chimney installation. The chimney installation was not as tall as it should be but Officers had concluded that, even if the chimney were higher, it would make “little or no difference” to the amount of smoke reaching Mr D. There was a possible minimal contravention of Building Regulations and the Council would “look again at enforcement action” under Building Regulations.
17. Mr D sent the Council an email in March and one in June. I have no notes of the further consideration of the case by Officers. The Council says that “since February the technical evidence on the chimney has been looked at again. It is still inconclusive”. The Council decided there was a minimal breach of Building Regulations and, as the installation had been approved by HETAS, there was not enough evidence to meet the standards to take forward a prosecution. I cannot see a decision letter was sent to Mr D confirming this.

What should have happened

18. The Council’s Environmental Health Team consider reports of nuisance being caused by smoke. Under the Environmental Protection Act 1990 (EPA) the Council can look at whether smoke from a premise is prejudicial to health or is a statutory nuisance. However, there are restrictions on what the Council can investigate. The EPA also says if a chimney of a private dwelling is in a ‘smoke control area’ then it cannot be investigated as a statutory nuisance. In such cases the Council must consider if it should investigate under the provisions of the Clean Air Act 1993 (CAA). Contravention of s.20(i) of the CAA, which relates to burning unauthorised fuel, is a criminal offence. That means any evidence gathered by the Council during an investigation must reach a much higher standard and be ‘beyond reasonable doubt’. The Council has to 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, the Council will not pursue the case. The 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.
19. The Council’s Building Control Team, part of the Planning Department, investigate reports of breaches of Building Regulations. When the Council investigates a planning breach it must consider firstly if there is a breach and secondly whether that breach warrants further action. There is no requirement on the Council to take enforcement action where a breach exits. The Council must consider the effects of the breach and if enforcement action is proportionate.
20. Under Building Regulations guidance, chimneys should, ideally, be at certain heights relevant to the building on which they are installed.
21. 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.
22. The Council responds to initial formal complaints within ten working days. Its complaints flow chart does not show any time targets for responding to escalated, stage two, complaints.

Was there fault by the Council

23. I have found evidence of delay by the Council. However, I also consider it has followed procedures when assessing the case and has reached decisions about not pursuing enforcement action which it has a right to make.
24. In respect of the smoke issue and Environmental Health the Council correctly advised Mr D that its role was limited to investigating if there was a breach of the CAA because Property A is in a smoke control area. That required a much higher standard of evidence because it would be a criminal prosecution if the matter went to court. The Council advised Mr D to report when the smoke was happening so Officers could witness it. Instead Mr D made retrospective reports. When the Council carried out site visits it did not witness any improper use of fuels by Property A. This meant the Council had limited evidence which did not support a prosecution. Mr D disagrees with the Council’s decision not to prosecute but it is one the Council was entitled to make.
25. There was delay by the Council investigating the smoke issue. At the end of July 2018 Mr D told the Council the smoke was ongoing. The Council told Mr D to notify them once the problems commenced again. He complained again in October and the Council agreed to investigate further. It did not appear to reach a decision until February 2019 when it set out its findings in the final complaint response to Mr D. While I do not expect the Council to have commenced an investigation until October I do not consider that it could have reached a decision before February 2019.
26. Turning to Building Control and its investigation I also find evidence of delay. It told Mr D it would consider the case further on 15 June 2018. I have seen no evidence of action by the Council in August or September including chasing up HETAS or seeking advice. Building Control did set out its view to Mr D on 23 November but failed to make it clear whether this was its final decision and if the case would be closed. The Council added to confusion by telling Mr D in February 2019 it would look again at the matter. I have not seen evidence of when or how the Council reconsidered the case or that it communicated a final decision to Mr D.
27. In respect of the decision to not pursue enforcement action I do not consider there is fault by the Council. That is because the Council has, overall, acted in line with procedures when assessing this case. It has visited Mr D, consulted with HETAS and taken account of guidance on Building Regulations. The Council is not obliged to take enforcement action where it finds a breach of Building Regulations. It has to consider whether it is proportionate to do so. In this case it has concluded the impact on Mr D is minimal and the breach is minor. Mr D strongly disagrees with that decision but I see no basis to question the merits of it.

Did the fault cause an injustice?

28. The faults I have identified meant Mr D had to wait longer than necessary for a decision on his case. The Council also failed to confirm the outcome of its post-February 2019 review leaving him uncertain of what had happened.

Agreed action

29. I recommended the Council write to Mr D setting out its final decision on the Building Control part of his complaint and its post-February 2019 review. I also recommended it apologise for the delay in the case. It agreed to do so.

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Final decision

30. I have ended my investigation of the complaint as the Council has agreed to my recommendations which address the injustice caused to Mr D.

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Parts of the complaint that I did not investigate

31. As set out above, we expect a complaint to be made to us within 12 months of the complainant being aware of something. In this case I have not looked at events prior to 2018.
32. We cannot investigate the actions of HETAS as it is not within our jurisdiction.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman