Summary: There was no fault in how the Council investigated Mr X’s reports of smoke and odour nuisance from a neighbouring residential premises.

The complaint

1. Mr X complains about smoke and odour nuisance from a residential premises near his home. He says he has been complaining since 2018, but the Council has refused to take action and ignored the findings of an independent investigation that he commissioned in 2021. He wants the Council to act to end the smoke and odour nuisance affecting his home.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Mr X has been complaining to the Council since 2018, but I can see no good reason why he could not have brought his complaint to us earlier if he was dissatisfied before October 2020. Events prior to October 2020 are late and so I cannot investigate them.
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I read Mr X’s complaint and spoke with his representative about it on the phone.
6. I made enquiries of the Council and considered information it sent me.
7. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Statutory nuisance

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
9. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.
10. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
11. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
12. Once the evidence-gathering process is complete, the EHO will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
13. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
14. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the EPA 1990.

The Council’s statutory nuisance policy

15. The Council’s policy says its case officers should use professional judgement to assess information gathered and to determine whether it amounts to a statutory nuisance. As part of its information gathering, officers can carry out site visits at a time most likely to witness nuisance. Normally, three visits will be made in an attempt to witness a nuisance.
16. If an officer is satisfied there is insufficient evidence to conclude that a statutory nuisance is present or likely to exist, the officer can decide to take no further action. The officer should advise the complainant of the decision and then close the case.

What happened

17. Mr X has been complaining to the Council about smoke and odour nuisance from a residential premises near to his home since 2018. Between October 2020 and July 2021, Mr X continued to make reports of smoke and odour nuisance and submitted diary sheets to the Council. In response to Mr X’s reports, the Council visited Mr X’s property and the alleged source several times to gather evidence. Council officers visited:
• Once in November 2020;
• Once in December 2020;
• Three times in January 2021;
• Twice in February 2021;
• Twice in May 2021; and
• Three times in July 2021.
18. The timing of these visits varied but were between 8am and 6pm. At each visit, the officer(s) decided that any smoke and odour detected did not amount to a statutory nuisance.
19. Mr X was dissatisfied with these findings and commissioned an independent odour nuisance investigation. This was completed in August 2021. The investigation completed odour monitoring at Mr X’s property between March and June 2021. It concluded that, based on both sniff tests and its particle monitoring, there was likely to be an odour nuisance at Mr X’s property.
20. Mr X sent the independent investigation report to the Council.
21. The Council considered the report and responded to Mr X. It said it had considered the report, but it did not change its view. Although it accepted the report confirmed an odour existed, the existence of some odour did not necessarily amount to a statutory nuisance. It said it had made numerous visits to Mr X’s property and its view remained there was no statutory nuisance. It told Mr X it would take no further action but advised him of his right to bring his own private action under section 82 of the Environmental Protection Act 1990, if he chose to do so.
22. Mr X was unhappy with this response and formally complained to the Council.
23. The Council completed two further visits to the alleged source of the nuisance and boundary of Mr X’s property on one day in early November 2021, one in the morning and one in the afternoon. Both visits concluded no statutory nuisance was present.
24. The Council provided Mr X with a final complaint response. It set out that it had made multiple visits to assess the nuisance as part of its investigation, at different times of the year. It said none of the visits had concluded that a statutory nuisance was present or was likely to exist. It confirmed its decision that as no statutory nuisance was present, it would take no further action and that the case was now closed.
25. Mr X remained dissatisfied and brought his complaint to us. Mr X said the Council had not considered the independent report and its visits to assess the nuisance had been at the wrong times and not at the times when the smoke and odour was present.

Analysis

26. We cannot question whether a council’s decision is right or wrong simply because a complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
27. In considering Mr X’s complaints of smoke and odour nuisance since October 2020, the Council:
• Considered diary sheets he submitted;
• Visited his property and/ or the alleged source of the nuisance thirteen times to consider whether any smoke and odour present amounted to a statutory nuisance;
• Considered the content of a professional report Mr X submitted.

After considering all the evidence, the Council decided that any smoke and odour present did not amount to a statutory nuisance. The Council investigated his complaints in line with its policy and reached its decision. There is no fault in how the Council reached its decision and so I cannot question the decision reached.

28. Although Mr X says the Council did not visit at the times of his reports and when the smoke and odour was present, the Council’s visits were at differing times of the day and spanned over the year. I am satisfied the Council made sufficient efforts to witness the alleged nuisance before reaching its decision. The Council was not at fault.
29. Mr X says the Council should have accepted the results of the professional report and concluded there was a statutory nuisance, but the Council does not have to do this. It appropriately considered the report as part of its investigation but, in light of all evidence gathered, decided there was insufficient evidence of statutory nuisance. The decision about whether a statutory nuisance exists is for the Council to decide, after it has considered all the evidence. This was not fault.
30. The Council appropriately advised Mr X of his right to take private action under the Environmental Health Act 1990. It is open to Mr X to pursue this, should he choose to do so.

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Final decision

31. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman