Summary: Ms X complains about the Council’s response to the concerns she raised about a neighbour’s oil tank sited close to her property. We will not investigate the complaint because we are unlikely to find evidence of fault and an investigation is unlikely to lead to a different outcome.

The complaint

1. The complainant, who I refer to as Ms X, says the Council is wrong to rely on unsubstantiated information to support its decision that it has no grounds to take enforcement action against the location of a neighbour’s oil tank close to her property. Ms X says she has been caused upset by oil fumes and has health and safety concerns regarding the positioning of the tank.

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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, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. In considering the complaint I reviewed the information provided by Ms X and the Council. I gave Ms X the opportunity to comment on my draft decision and considered what she said.

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What I found

4. Earlier this year Ms X contacted the Council to report oil smells coming from her neighbour’s garden in which an oil tank is located. While the smells diminished, Ms X remained concerned that odourless fumes might be penetrating her garden, and that the smells might return when the tank was refilled. She raised this matter with the Council as well as her concern that, being close to a common boundary fence, the tank did not meet the relevant Building Regulations fire and safety requirements.
5. The Planning Department responded to Ms X and explained that as the oil tank had been installed nearly 20 years ago the Council would not undertake any further investigations into its condition or siting. It explained the reason for this was that Building Control has only a limited time to take enforcement action and this period had passed. It confirmed that its Environmental Health Department was investigating possible pollution issues.
6. Believing that she had provided evidence to support her contention that a replacement oil tank had been installed in 2019, and therefore within the statutory time limits to allow enforcement action and the repositioning of the tank, Ms X complained at Stage 2 of the Council’s complaints procedure.
7. The Council reviewed the evidence from Ms X and its officers, including communication from the engineer who had serviced the boiler at the property for the last four years, having last visited in Spring 2020. It said the engineer confirmed the tank which was there at his last visit was the same one that had been there since he had first started servicing the boiler. The Council explained it had no reason to doubt the view of the professional engineer and that although the location of the tank might not comply with the relevant guidance, as the tank had been in the same position for more than two years it could not take enforcement action to remove or alter its location.
8. The Council later wrote to Ms X to confirm that its Environmental Protection Team had concluded its investigation and found that the most likely cause of the smells was that the tank had been filled to capacity which meant vapours generated by warmer conditions had been released via the safety mechanism. It suggested the tank should only be filled to 70% to give room for the vapours.

Assessment

9. While I understand Ms X is dissatisfied with the Council’s response to her ongoing concerns about the position of the tank, it has investigated and informed her of its conclusions. I do not consider an investigation by the Ombudsman would be likely to find evidence of fault by the Council or lead to a different outcome.
10. Ms X says the Council has not contacted the previous occupiers and that the engineer only said that the tank had always been in the same position. However, the Council says the engineer confirmed the tank was the same one that had been there while he had been servicing the boiler and he had done so for over two years. Having received this confirmation from the engineer, the Council did not consider it necessary to contact the previous occupiers.
11. In responding to my draft decision Ms X says the point of her complaint is whether or not the current oil tank is a recent replacement, but she is not disputing an oil tank has been in the same position for several years. In her view the information from the engineer does not support the Council’s summary of what he said. However, the engineer’s email confirmed he had looked after the boiler for 3/4 years and that “the oil tank has always been were(sic) it is”. He does not say “an” oil tank has always been in that position and he took the view that the owner was “probably right” when he had said the tank had been installed in 2001. The Council considered the evidence and satisfied itself the tank was over two years old and so it cannot take enforcement action.

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Final decision

12. We will not investigate this complaint. This is because we are unlikely to find evidence of fault by the Council and an investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman