Summary: Mr X complained about the Council’s building control and environmental health investigations regarding his reports of smoke nuisance from a neighbour’s chimney. There was no fault in the Council’s environmental health or building control investigations. There was a delay in the Council’s complaints process, but the Council has already apologised for the injustice caused by the delay.

The complaint

1. Mr X complained about the Council’s building control and environmental health investigations following his reports of smoke nuisance from a neighbour’s chimney.
2. Mr X says the matter affected his physical and mental health and caused him distress and frustration.

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The Ombudsman’s role and powers

3. 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’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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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What I have and have not investigated

7. 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).
8. Mr X complained to the Ombudsman in April 2023 about events starting in April 2021. There are no good reasons to exercise discretion to investigate events dating back to 2021. Mr X could have complained sooner.
9. Therefore, I have investigated matters starting 12 months before the date Mr X complained to us, starting April 2022, and ending August 2023.

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How I considered this complaint

10. I spoke with Mr X and considered information he provided.
11. I considered information provided by the Council.
12. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Building regulations and self-certification schemes

13. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live near them.
14. Building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
15. Not all work covered by building regulations needs to be approved by a building control officer or independent approved inspector. For example, gas or electrical work can be carried out under self-certification schemes by individuals who qualify as ‘competent persons’.

HETAS

16. “HETAS” (Heating Equipment Testing and Approval Scheme) is an example of a self-certification scheme where ‘competent persons’ are registered to complete building works without additional oversight by a council building control officer or independent approved inspector.

Environmental health

17. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
18. For the issue to as amount to a statutory nuisance, it must:
1. unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
2. injure health or be likely to injure health.
19. 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.
20. Once the evidence-gathering process is complete, the environmental health officer(s) 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.

Private court action

21. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded that they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
22. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to take private action under section 82.

Council’s complaints policy

23. The Council has a two stage corporate complaints policy. It says the Council will aim to respond to complaints at both stages within ten working days. It also says if the case is complex and requires a longer investigation, it will write to the complainant with a date it expects to respond.

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Background

24. The information below is not everything that happened. It is a summary of key points.
25. In late 2020 Mr X’s neighbour installed a biomass boiler with an external flue. It was installed by a HETAS registered engineer through a self-certification scheme.
26. Mr X wrote to the Council in March 2021. He said the height of the flue was too short and raised concerns about smoke affecting his health. The Council asked him to complete nuisance diaries over a four-week period and explained the process of evaluating a statutory nuisance. It told Mr X the building control team were aware of his concerns.

July 2022

27. There was no further correspondence between Mr X and the Council until July 2022, when Mr X contacted it again. He reiterated his concerns about the height of the flue and the affect it may have on his health. He explained he had not completed any nuisance diaries.
28. The Council reviewed the information it held and could not find a certificate of compliance for the installation. It made enquiries with HETAS, the third-party self-certification scheme, about the installation. It also spoke with Mr X about the environmental health nuisance he said he was experiencing.
29. Later that month HETAS sent the Council a copy of the notification that the work was completed by one of its registered providers.
30. The Council wrote to Mr X to explain that, because the work had been completed under the self-certification scheme, it was satisfied there was no further action required under the building regulations. It said he could contact HETAS if he had any further concerns about the installation.
31. Mr X responded and said he was still not satisfied the installation met Part J of the building regulations. He requested the Council visit and conduct its own evaluation.
32. In late August 2022 the Council sent a building surveyor to the property. The officer measured the height of the flue and the distance between the buildings. The Council later contacted the installer to request additional information. The installer provided the Council with an up-to-date installation manual. The manufacturer also confirmed the required height of the flue with the installer.
33. Based on the information it received, the Council decided the height of the flue was adequate because it was installed with a draft induction fan. It recorded it had visited and confirmed the distance between the flue and Mr X’s house was sufficient under Part J of the building regulations.
34. The Council wrote to Mr X to confirm it was satisfied the installation was compliant under the building regulations and it decided no further enforcement action was necessary. It told him he could continue to pursue the matter through the Council’s environmental health team.

Environmental health investigation

35. The Council spoke with Mr X about his report of a statutory nuisance in August 2022. It told him it required evidence and asked him to complete a nuisance diary. The Council communicated with Mr X about the matter several times over several weeks. Mr X sent the Council a video of the fumes but did not complete a nuisance diary.
36. In early October 2022 after further correspondence with Mr X an officer from the Council’s environmental health team visited Mr X at home. The officer witnessed light, colourless smoke from the flue and told Mr X because the smoke was not dark and was intermittent, it was unlikely to be a statutory nuisance. The officer explained a statutory nuisance had to affect the average person, and noted Mr X’s wife was not affected by the smoke. The Council asked Mr X to complete a nuisance diary covering a two-week period to record when he was affected by the smoke.
37. Between October 2022 and late December 2022, Mr X provided the Council with diaries of the smoke causing him nuisance. The environmental health team also visited Mr X’s property five additional times. It recorded:
1. one visit where no smoke was witnessed;
2. one visit where the officer witnessed a small amount of smoke in the bathroom which was light in colour and dispersed within a few minutes with no smoke detected elsewhere in the house;
3. one visit where smoke was detected when walking outside along Mr X’s garden and patio, but not within the house;
4. one visit where light smoke was seen, which lasted three minutes before ceasing. The Council detected faint fumes in the garden and patio area, but not inside the house; and
5. a final visit where no fumes were detected.
38. After the visit the Council recorded it did not believe the fumes occurred often enough to be a statutory nuisance but noted it would evaluate further before deciding how to proceed.

Contact with HETAS

39. In December 2022 the Council contacted HETAS. It requested a visit by one of their engineers to ensure the installation was compliant.

Mr X’s complaint to the Council

40. In January 2023, Mr X made a formal complaint to the Council. He said the flue did not meet the requirements under Part J of the building regulations. He said the prevailing winds were not considered, the height of the flue was inadequate, and the fumes from the flue were unable to safely disburse into the air. Mr X also told the Council the manual it used to confirm compliance was a new manual, not the original manual available in 2020 which recommended a different flue height.
41. The Council responded to Mr X’s complaint 37 working days later. It apologised for the delay. The Council told Mr X its environmental health team had visited on five occasions and found no evidence of a statutory nuisance. It told Mr X to continue filling in nuisance diaries if he is being negatively affected by the smoke. It said the building control team had requested a visit by HETAS to confirm the installation was compliant.
42. Mr X remained dissatisfied with the Council’s response and wrote a formal stage two request. He repeated his concerns about the flue not meeting building regulations and said the Council had not used an instrument to measure the fumes. He reiterated his concern the wrong manufacturer installation manual was considered.
43. The Council conducted additional enquiries with the UK Health Security Agency (UKHSA) about the risks of the fumes emitted from the flue. Following the consultation, the Council found no immediate concerns regarding the smoke posing a risk to health.
44. The Council wrote to Mr X and informed him of its discussion with the UKHSA. It told Mr X if he wanted the Council to continue to investigate whether a statutory nuisance existed it would do so, but said it required him to fill in a new nuisance diary to show how the smoke was affecting him. It explained because the smoke was mainly observed outside during the summer there may be an expectation he would be outside more frequently; the smoke may then become a statutory nuisance.
45. In mid-April 2023 Mr X wrote to the Council and provided a nuisance diary which included three instances of smoke affecting him in January 2023, and one instance of being affected by the smoke in March 2023. Mr X told the Council he would not complete any further diaries. He told the Council he did not want the boiler to be removed, just the flue to be extended.
46. The Council responded and told Mr X without the diaries it could not progress the matter further. It told him it had found no evidence of a statutory nuisance in the diaries he had provided. It closed its investigation and signposted Mr X to private court action he could take under section 82 of the Environmental Protection Act 1990.

The Council’s stage two complaint response

47. The Council responded at stage two of its complaints process in mid-June 2022, 81 working days after Mr X’s stage two request. The Council told Mr X:
1. it was sorry for the delay in completing the complaints process;
2. the environmental protection team had conducted in-person visits and reviewed Mr X’s nuisance diaries. However, it found no evidence of a statutory nuisance because the duration and frequency of the fumes was too short/ irregular, the fumes were only detected inside the home on one occasion, and all other visits detected smoke only in the garden;
3. Mr X had told the Council he was more sensitive to the smoke, and his wife was unaffected;
4. it contacted the UKHSA and considered the type of fuel used in deciding whether a statutory nuisance existed;
5. the building control team found the flue was installed by a competent registered person. It was satisfied based on the evidence the flue was installed in accordance with the manufacturer’s specifications;
6. the manual used by the Council to confirm the installation compliant was sufficient;
7. part of the HETAS installation and self-certification process includes an assessment of local wind patterns. Without the paperwork, the certificate would not be issued; and
8. the Council had communicated with HETAS, the installer and Mr X’s neighbour over several months to organise a visit to confirm compliance.
48. In the summer of 2023, HETAS visited the property. The HETAS report indicated additional work was required. The height of the flue was extended as a result.

Analysis

49. We are not an appeal body. Our role is to review the process by which decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.

Building Control

50. The Council decided in October 2022 that the boiler and flue installation met the requirements of the building regulations. The installation was later found to require additional work in summer 2023 and the flue was extended.
51. I considered how the Council made its decision in October 2022. The evidence shows the Council gathered information from appropriate sources, including Mr X, the installer, HETAS, and the manufacturer, before making its decision. It considered relevant law and legislation and made its decision based on all the information available at the time. I found no fault in the process the Council followed to make its decision. Therefore, we cannot question the outcome.

Environmental health

52. The evidence shows the Council conducted in-person visits and considered Mr X’s nuisance diaries. Using their professional judgement, environmental health officers concluded the smoke did not amount to a statutory nuisance. This included considering whether the impact of fumes on Mr X’s health, which involved consulting appropriate professionals, and considering the type of boiler and fuel used.
53. The Council told Mr X it had not found evidence of a statutory nuisance and informed Mr X of his right to take private action under section 82 of the Environmental Protection Act (1990). This was not fault.

Complaints process

54. The Council’s stage one complaint response was sent 37 working days after Mr X’s stage one request. This was 27 working days longer than the Council’s complaint policy allows and was fault.
55. The Council’s stage two complaint response was sent 81 working days after Mr X’s stage two request. This was 71 working days longer than the Council’s complaint policy allows and was fault.
56. The above faults caused Mr X frustration and uncertainty. The Council apologised for the delays, and this was sufficient to remedy the injustice caused.

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Final decision

57. I completed the investigation. I found some fault, and the Council already remedied the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman