Summary: Mr and Mrs X complained about the Council ‘s failure to take action over a nearby neighbour causing smoke pollution from a wood-burning stove. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

The complaint

1. The complainants, whom I shall call Mr and Mrs X, complain about the Council’s failure to prevent smoke pollution from a neighbour’s stove affecting their property and their health.

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The Ombudsman’s role and powers

2. 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’. 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
• 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.

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

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How I considered this complaint

3. I have considered all the information which Mr and Mrs X submitted with their complaint. They have also been given the opportunity to comment on the draft decision.

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What I found

4. Mr and Mrs X complained about smoke pollution from a neighbouring property which they say is affecting their health. The Council investigated the property in question and says the wood-burning stove is using an appliance which is exempt from smoke control regulations. The fuel being burned was also of a type approved by Defra and is permissible in a smoke-controlled zone.
5. The Council could only serve an abatement notice if the smoke produced was a statutory nuisance. In this case the Council did not consider the smoke to be a statutory nuisance because it was from a stove and fuel which complies with the regulations.
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 can only consider whether there was fault in the way the decision was reached.
7. In this case the Council carried out its duty to investigate the complaint about nuisance but could not take any enforcement action.

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Final decision

8. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman