Summary: We will not investigate this complaint about the Council’s decision not to take action against a business which the complainant says discharges illegal smoke emissions from a flue. There is insufficient evidence of fault in the way the Council reached its decision. Also, we have not seen evidence that the complainant has had his contacted with the Council restricted.

The complaint

1. The complainant, I shall call Mr X, complains the Council refuses to act against a company which is illegally allowing dark smoke emissions from its biomass woodchip boiler.
2. Mr X says this has damaged his health, caused him to evacuate his home and left his property worthless. He is concerned that, should the boiler continue to emit dark smoke when it restarts in the cooler weather, he will become seriously ill.

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The Ombudsman’s role and powers

3. 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
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X reported instances of smoke emitting from a boiler flue at a nearby plant nursery.
7. The Council confirms Mr X sent in photos of smoke coming from a nearby flue. Officers visited the site on different days and noted at both visits that prevailing winds were not blowing towards Mr X’s home and the smoke was effectively dispersed. The Council says it contacted the business which advised it had had technical issues which may have resulted in instances of smoke from the flue. The Council says its Officers are satisfied the site is undertaking necessary work to rectify the problem. It also confirms it will be monitoring the situation.
8. Determination of nuisance considers the level of impact, the frequency and duration of the issue. Therefore, the Council asked Mr X for permission for Officers to assess the impact of the smoke from inside and outside his property. They advised they would need to visit for short periods over several days. Mr X refused to allow Officers to visit his property.
9. An expert consultant engaged by Mr X sent the Council a letter. This says that based on photographs and a brief video clip provided by Mr X, the smoke emitted from the flue is illegal under the Clean Air Act.
10. The Council has acknowledged the photos and the letter from the consultant. However, it says it must have evidence to act under either the Clean Air Act or the Environmental Protection Act. The visual information provided by Mr X does not show the date, start time and finish of each incident which it requires. It also confirms Officers have not witnessed dark smoke when attending the site and Mr X will not let them visit his property.
11. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
12. Based on the information provided, I am satisfied the Council properly responded to Mr X’s reports about smoke from the neighbouring business.
13. The Council considered the reports and visited the site multiple times, contacted the business about its responsibilities, and confirms it will continue to monitor the site. The Council reviewed the evidence from its own visits as well as information from Mr X including his consultant’s letter in reaching its view not to take any further action.
14. The Ombudsman cannot question the merits of properly made decisions. The Council has advised Mr X that, should he continue to advise that smoke from the flue is unreasonably impacting him at his home, it will arrange for further monitoring. As we cannot instruct the Council to take legal action against the business, I do not see that we could achieve anything further for Mr X.
15. Mr X also says the Council has ‘blacklisted’ him and banned him from reporting further smoke pollution/smoke nuisance.
16. From the information I have seen, the Council has advised Mr X that his conduct is placing him at risk of being classed as an ‘unreasonable complainant’. It says he is making unreasonable demands on the Council including:
• refusing to co-operate with an investigation while expecting the issue to be resolved;
• continuing to raise the same subject without providing new evidence; and
• contacting numerous Officers about the same issue.
17. However, I have not seen any evidence to show the Council has restricted Mr X’s contact with it. Nor have I seen evidence to show Mr X has been prevented from reporting new issues about smoke emissions.

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Final decision

18. We will not investigate Mr X’s complaint because we have not seen;
• evidence of fault in the Council’s decision making; nor
• evidence that Mr X has been ‘blacklisted’ by the Council.

Also, we cannot instruct the Council to take legal action against the business, so we cannot achieve the outcome Mr X is seeking.

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Investigator's decision on behalf of the Ombudsman