Summary: We will not investigate this complaint about the Council’s response to the complainant’s complaints about smoke and fumes. This is because we could not achieve the outcome he wants.

The complaint

1. The complainant, Mr B, complained about the Council’s response to his complaints about smoke and fumes.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.
5. Mr B has had an opportunity to comment on my draft decision.

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My assessment

6. Earlier this year Mr B complained to the Council about smoke from a local business’s outdoor barbecue. He said the cooking took place daily for an extended period. Mr B told us smoke filled the street, affecting his home where he worked, and surrounding residences. He is concerned the smoke is a health hazard. Mr B said he did not receive a response each time he raised the issue with the Council’s Noise and Nuisance Team. He told us often, the Council failed to keep a record of his complaints. Mr B said there is no evidence of council officers visiting the site. He said there was little to no chance the smoke and smell was not noticeable to anyone who had been present at the premises.
7. In its final response to Mr B’s complaint the Council said it had a record of five calls Mr B’s household had made about the matter and three visits to the premises.
8. The fact that smoke is noticeable does not necessarily mean it is a statutory nuisance. A council officer must witness the nuisance, it is not usually something the officers can judge retrospectively. There is no objective measure of the intensity at which smoke becomes a statutory nuisance. It is for a council’s officers to exercise their professional judgement. They need to judge the extent to which the smoke is affecting people in their homes.
9. We cannot substitute our own view for that of the Council’s officers who deal with nuisance complaints so we could not add to any investigation the Council has already done. If there is an increase in the intensity of the smoke from the barbeque, this is something Mr B can report to the Council at the time it is happening. This would be the appropriate way forward if the intensity of the smoke increases.
10. In its final response to Mr B’s complaint the Council said the view of its planning enforcement service was a barbeque was not a breach of planning control. In this case there has been no change in the use class of the premises or any new permanent structure. The question of whether there has been a breach of planning control is a matter for the Council’s planning service to determine.
11. Mr B wants the Council to order the immediate removal of the outdoor barbeque. That is not something we could achieve for him by investigating this complaint. That is because it is for the Council to determine whether it can take action on nuisance, licensing or planning grounds. To date, the Council has not established grounds for doing so.

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Final decision

12. We will not investigate Mr B’s complaint because we could not achieve the outcome he wants.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman