Summary: We will not investigate Ms B’s complaint that the Council dealt in the wrong way with her complaint about daily strong cooking smells. This is because it is unlikely we would find fault by the Council.

The complaint

1. The complainant, Ms B, complained that the Council dealt in the wrong way with her complaint about daily strong cooking smells. Ms B has told us the situation she is living in has significantly affected her health and wellbeing.

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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. I have considered the information Ms B provided and the provisions of the Environmental Protection Act 1980. Ms B has had an opportunity to comment on my draft decision.

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What I found

4. Councils have a duty to investigate complaints about noise or other pollutants such as smells which could be a statutory nuisance. In its final response to Ms B’s complaint the Council explained the provisions of the Environmental Protection Act apply to smells from trade or business premises but not from domestic properties. The Council said that meant it had no legal basis to intervene.
5. Ms B told us she strongly believes the Council is looking at the issue in a wrong way. That is because its officers investigating her complaint under the provisions of the Environmental Protection Act. She said the Council should have investigated the matter under private nuisance law.
6. Councils can only take the action the law allows them to take. Action under private nuisance law can only be taken by the person who is suffering nuisance. It is a private civil matter between the parties involved. The Council cannot act in the way Ms B wants. The Council has suggested it would be appropriate for Ms B to seek her own legal advice on what action she may be able to take, if any.
7. There is insufficient evidence of fault by the Council in this case. The Council has not been able to act in the way Ms B wanted because it does not have the legal powers to do so.

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Final decision

8. We will not investigate this complaint. This is because it is unlikely we would find fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman