Barnsley Metropolitan Borough Council (20 011 355)

Category : Environment and regulation > Pollution

Decision : Closed after initial enquiries

Decision date : 04 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s failure to take action against smoke emission from a neighbour’s chimney. We will not investigate the complaint because we are unlikely to find evidence of fault.

The complaint

  1. The complainant, who I refer to as Mr X, complains about the Council’s failure to take action against smoke emission from a neighbour’s chimney. He says the Council did not visit to assess the impact on him and that it is unconcerned about the unpleasant smells he and others have to endure.

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The Ombudsman’s role and powers

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

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How I considered this complaint

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

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What I found

  1. Mr X complained to the Council about smoke emission coming from a neighbour’s chimney. He said a dreadful smell was coming out which meant he was unable to go out and enjoy his garden and that he had to keep his windows closed.
  2. The Council visited the neighbour Mr X had identified. It checked both the appliance they were using and the fuel being burnt. Having found that the correct appliance and fuel were being used, it told Mr X of its findings.
  3. Unhappy with this response and believing the Council had taken a one-sided approach without visiting him, he pursued his complaint. In response the Council explained that in a smoke control area (which covers the whole of Barnsley) the issue of smoke from domestic chimneys falls under the Clean Air Act 1993 and that what has to be determined is whether smoke is being emitted and, if it is, whether this is the result of the use of an unauthorised appliance or unauthorised fuel unsuitable for use in a smoke control area. It explained that to check this a visit was necessary to the occupier of the premises but not to the home of the complainant.
  4. The Council told Mr X it had established his neighbour was using the correct appliance and fuel and therefore there was no action it could take. It also went on to explain that it could also not take any action under the Environmental Protection Act 1990 because this legislation specifically excludes chimneys in a smoke control area from nuisance legislation.

Assessment

  1. I understand Mr X is troubled by the smells he has reported. However, the Council has investigated and found no grounds on which it can take enforcement action. While this may be disappointing for Mr X, it is not evidence of fault by the Council.
  2. In carrying out its assessment of the neighbour’s appliance and fuel it had to visit the neighbour but there was no requirement or need to visit Mr X’s home. I note an officer did return to the area twice to assess the smell and found a faint odour of burning wood which they did not in fact consider was coming from Mr X’s neighbour’s property. The Council has said it will act to verify the appliance and fuel used by any other properties if another source of smoke is identified.
  3. In response to my draft decision Mr X says he knows that his neighbour’s chimney is creating the smell and that the Council should carry out some form of mediation and look at measures which would push the smell higher into the atmosphere and dilute it. However, it has been explained to him that the Council has no grounds on which to take further action.

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Final decision

  1. We will not investigate this complaint. This is because we are unlikely to find evidence of fault.

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Investigator's decision on behalf of the Ombudsman

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