Summary: The complaint is about the actions the Council has taken to deal with breaches of the Clean Air Act from the chimneys of back-up generators. The Ombudsman’s view is we should discontinue our investigation, as we are unlikely to achieve anything further for the complainant.

The complaint

1. The complainant, whom I shall describe as Mr V, complains the Council has not taken action chimneys that do not meet with the requirements of the Clean Air Act, leading to poor air quality. The Council has not calculated chimney stack heights for diesel generators. The chimneys are not adequately dispersing the plumes from the generators. This will get worse when a new building the Council has granted planning permission, is built.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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 or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

5. As part of the investigation, I have considered the complaint and the documents provided by Mr V. I have made enquiries of the Council and considered its response. I sent Mr V and the Council my draft decision and considered the responses I received.

Back to top

What I found

6. Section 79 of the Environmental Protection Act 1990 says smoke emitted from premises so as to be prejudicial to health or a nuisance is one of the matters which constitute “statutory nuisances” for the purposes of that part of the Act.

What happened

7. In April 2018 Mr V first raised concerns with the Council’s Environmental Health Team about the effect of a proposed development near his home on smoke pollution from the chimneys of an adjacent commercial building. Mr V is particularly concerned about the black smoke generated from the testing of diesel back-up generators, that is visible at ground level. This suggests the chimneys are not dispersing the emissions.
8. The Council’s Environmental Health team directed Mr V to its planning team. That team advised him its air quality technical officer had covered the possible generator pollution in his report for the planning application for the new building. Mr V’s response noted the report did not refer to the diesel generators.
9. Mr V’s concerns are that when the diesel generators are tested (for five minutes a week and for an hour a month) they produce black smoke at ground level. He is concerned the new build’s height would reduce the effectiveness of pollution dispersal. He refers to the Clean Air Act. He says Section 14 of that Act has a requirement the Council should have checked the dispersal during its consideration of the planning application.
10. The Council’s scientist responded to Mr V’s complaint. He advised the Council’s view was the generators met the requirements of the Clean Air Act. He explained why. He also noted that, as the backup generators operated for less than 18 hours a year, the Council did not consider that any nuisance from them caused a statutory nuisance.
11. Mr V’s response questions whether the Council could provide reports about its inspections of the backup generators. He asked the Council to respond to a complaint about the Council’s consideration of the planning application.
12. The Council responded to Mr V’s new complaint. It advised its scientist’s view was the Council did not need to have documentary evidence the diesel generators complied with the Clean Air Act. It advised:
• the powers available to local authorities to monitor and have control over air quality are quite limited.
• The planning process was a better form of control, as it allowed the Council to condition permissions.
• It was unlikely the Council could successfully prosecute under the Environmental Protection Act, as it was unlikely the duration of any smoke from the diesel generators amounted to a statutory nuisance.
• “It is an offence under the Clean Air Act 1993 to release dark smoke from chimneys, should that be witnessed for more than thirty minutes at a time. Anything less than this is not considered to justify a warning notice or prosecution proceedings under the current version of the clean air act. It was for these reasons, (the issue of frequency and duration) that [the scientist] focused on the limited use of these generators in his previous response to you.”
• It cited conditions in the 2011 original planning permissions for the chimneys. It also noted that, in the application for the new building, the Council considered plume dispersal for the existing chimneys. It included comments on the application from its Air Quality Officer.
• It advised it would consider acting if smoke from the chimneys got worse. But its view was there was nothing to suggest the diesel generators were not currently working as they should be. Any initial burst of smoke on ignition would dissipate if the generator was left to run.

Analysis

13. Mr V is concerned the Council has not followed the requirements of the Clean Air Act. It is not the Ombudsman’s role to make decisions on contested questions of fact and law, which needs the more stringent and structured procedures of civil litigation for its proper determination. But my ordinary reading of the part of the Section of the Clean Air Act Mr V cites suggests it refers to initial approval of the height of chimneys. It does not seem to refer to retrospective approval when other buildings are built nearby.
14. It seems to me the Council is correct in its view that the consideration of the planning application for the proposed building is the proper place to determine its effect on air quality. And my view is the Council’s consideration of the planning application was adequate.
15. My provisional view was it was now too late for us to investigate the Council’s consideration of the chimneys in its 2011 planning decision. Mr V says he was not aware this might be an issue until the new planning application in 2018. That suggests the pollution from the chimneys was not significant enough to alert him earlier. So I do not see what injustice Mr V has been caused. This is supported by the Council’s assessment that the diesel generators do not run for long enough to cause a statutory nuisance. This test seems to me to be an appropriate benchmark for assessing potential injustice.
16. And the Council’s view about statutory nuisance is something for officers to determine, using their professional judgement. The Ombudsman cannot question the merits of properly made decisions. The Council has offered to revisit this if the pollution gets worse. I do not see that we could achieve anything further for Mr V.

Back to top

Final decision

17. I have discontinued my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman