Summary: The Ombudsman will not investigate this complaint about the Council deciding not to take enforcement action against emissions from a gas boiler flue. There is insufficient evidence of fault in the way the Council has assessed the complainant’s concerns.

The complaint

1. The complainant, whom I refer to as Mrs B, says the Council has failed to take action against emissions coming from her neighbour’s gas boiler flue, which is located outside her bathroom window. Mrs B believes the emissions constitute a statutory nuisance.

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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. We 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. (Local Government Act 1974, section 24A(6), as amended)
3. In that regard, 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)

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How I considered this complaint

4. I have considered:
• Mrs B’s initial complaint to the Ombudsman, and the additional information she submitted on 11 January 2020;
• The Council’s Stage 1 and 2 complaint responses;
• Information from the Council about how it considered the case.
5. I also gave Mrs B the opportunity to comment on a draft version of this statement.

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What I found

Background

6. Local authorities have a duty to take such steps as are reasonably practicable to investigate complaints of a statutory nuisance. The Environmental Protection Act 1990 includes ‘fumes or gases emitted from premises so as to be prejudicial to health or a nuisance’ as a statutory nuisance which the authority can take action against.

Assessment

7. I appreciate Mrs B disagrees with the Council’s decision that a statutory nuisance does not exist in this case. But the Ombudsman cannot question the Council’s decision unless there is evidence of administrative fault in the way it was made. I find there is insufficient evidence of fault to warrant the Ombudsman starting an investigation into the complaint. In reaching my view, I am particularly mindful that the Council:
• Considered what the flue emissions would consist/be comprised of;
• Conducted a site visit to check whether the flue was positioned in accordance with the relevant building regulations;
• Considered the advice/letter Mrs B obtained from the Gas Safe Register, and referred the matter to the Health & Safety Executive for further advice;
• Conducted a second site visit, when the boiler was operating, and concluded the plume of vapour did not amount to a statutory nuisance;
• Sought legal advice and considered the legal background for assessing this kind of nuisance complaint.

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Final decision

8. The Ombudsman will not investigate Mrs B’s complaint. This is because there is insufficient evidence of fault in the way the Council investigated Mrs B’s concerns and reached its view that a statutory nuisance does not exist.

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Investigator's decision on behalf of the Ombudsman